Otieno & 37 others v Union of Kenya Civil Servants & 3 others (Petition E027 of 2023) [2025] KEELRC 659 (KLR)
The bottom line
#The Employment and Labour Relations Court in Kisumu dismissed a bid to punish union officials for contempt, finding no wilful disobedience of its earlier orders.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd Respondent's preliminary objection (res judicata, functus officio, exhaustion) is merited
- 2.Whether the Petitioners have met the threshold for granting contempt of court orders
Key legal issues
#Whether contempt of court was established against the 2nd, 3rd and 4th Respondents
Contempt was not established; the Respondents complied or at least did not wilfully disregard the order
The court found there was an invitation to inspect the books of account, albeit with a caveat against disclosure, and the Petitioners attended the conference called by the Union where they could raise their concerns. The Respondents did not abridge the Petitioners' rights nor act contrary to the directions in the judgment. The order was also not specific as to which documents were to be availed, negating wilful disobedience to the quasi-criminal standard required.
Whether the prayers in the motion were res judicata or otherwise an abuse of process
Several prayers mimicked the Petition itself and formed the corpus of prior determinations; they could not be revisited in a post-judgment motion
The 2nd Respondent had objected that prayers 3, 4 and 5 were declined in Kisumu ELRC Petition No. E008 of 2024 and prayers 6 to 12 had been canvassed and denied by this court. The court agreed that relitigating determined issues in post-judgment applications serves no useful purpose, reinforcing the objection as part of the basis for dismissal.
Legal principles established
#- Contempt must be proved to a standard higher than a balance of probabilities because liberty is at stake
- For contempt to lie, wilful failure, refusal or neglect to obey a court order must be established
- Parties should not relitigate issues already determined by the Court in post-judgment applications
Court orders
#- 1.Dismissal of the Petitioners' application dated 29th November 2024
- 2.Costs of the application awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Contempt jurisdiction of the Employment and Labour Relations Court over disobedience of its own judgment/orders
Relief refused
#Finding that the 2nd, 3rd and 4th Respondents are in contempt of the orders of 31st January 2024
Petitioner did not establish wilful disregard of the court order; no proof of contempt
Fine/penalty of Kshs 10,000,000 with attachment of assets in default
Contempt not established; prayers presupposed a conviction
Committal to civil jail for 6 months
Contempt not established to the required standard
Freezing of the 1st Respondent's bank accounts and restraint on withdrawals
Prayers mimicked the Petition itself and exceeded the scope of the judgment; inappropriate to revisit determined issues
Independent audit, appointment of audit firms, police security, and suspension of the 2nd to 4th Respondents
Did not arise from the judgment; declined as the motion did not satisfy the prerequisites
Costs
Application dismissed with costs to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Upon conclusion of the assessment of the facts surrounding the alleged contempt, I am not satisfied that the Petitioner has established wilful disregard of the court order by the alleged contemnors.
a contempt allegation must be proved on a higher standard that a balance of probability
It is inappropriate for parties to litigate on issues already determined in prior pronouncements of the Court.
I accordingly dismiss the Petitioner applicant's application dated 29th November 2024 with costs to the Respondents.
The Court in sum finds the motion before it does not satisfy the prerequisites for the court to grant the orders sought
Issues in the judgment
#The inspection date is given inconsistently within the judgment
Petition number of the suit itself is not stated anywhere in the judgment
The court's own statement of the standard of proof is internally tense, describing contempt both as a criminal offence and as quasi-criminal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno & 37 others v Union of Kenya Civil Servants & 3 others (Petition E027 of 2023) [2025] KEELRC 659 (KLR)", Case Analysis (2025). null — petition number not stated in judgment (Kisumu ELRC, the petition in which judgment was delivered on 31st January 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/659/eng@2025-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.