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ELRCDismissedPetition E207 of 2022 (Notice of Motion dated May 22, 2025)

Benjamin v Lemedeket & 6 others (Petition E207 of 2022) [2025] KEELRC 2125 (KLR)

Employment and Labour Relations Court
17 July 2025
5,664 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to jail a police official for contempt, ruling contempt must be proven beyond reasonable doubt and declarations were not directed at her personally.

What this practically means

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Executive summary

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The petitioner applied by notice of motion dated May 22, 2025 under section 5(1) of the Judicature Act, the Contempt of Court Act and the Civil Procedure Act, seeking that Bernice Sialaal Lemedeket, the 52nd interested party, be cited and punished for contempt of the judgment of July 25, 2023 (Benjamin v Attorney General & 2 others, Petition E207 of 2022) which nullified the office of Principal Administrative Secretary (PAS) and declared the Inspector General the Accounting Officer of the National Police Service. The applicant alleged she continued in office and drew salary. The contemnor, the National Police Service Commission and the respondents through the Attorney General replied that the PAS position was withdrawn, that she now holds a distinct office of Secretary, Administration/Accounting Officer, and that the contempt test was not met; some issues were said to be subject of appeals before the Court of Appeal. The court adopted the four-element test for civil contempt from the Mweru line of authority, undisputed by the parties, and treated contempt as criminal in nature requiring proof beyond reasonable doubt. It held the cited person holds an office that is not statutorily ranked and scheduled and which was not the impugned office; the declarations on the accounting officer were in rem and not directed at her; and her emplacement in the new role was a new cause of action attributable to the appointing authorities, not her own act. The court declined all punitive reliefs but issued clarifications, reaffirming that the National Police Service is composed only of scheduled ranked officers, and that any new ranks must be created by the Cabinet Secretary on the advice of the Commission by Gazette order. The application was declined with each party bearing own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 52nd interested party acted in disobedience of the declarations made in the judgment of July 25, 2023 that the Inspector General is the Accounting Officer of the National Police Service
  2. 2.Whether the office of Secretary, Administration/Accounting Officer held by the cited contemnor is the same as the impugned office of Principal Administrative Secretary nullified in the judgment
  3. 3.Whether the elements of civil contempt were proved to the standard of beyond reasonable doubt
  4. 4.Who the primary duty bearers would be in the alleged contempt
  5. 5.Whether the National Police Service Commission was in contempt of court

Key legal issues

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01

Elements and standard of proof for civil contempt

Holding

The Mutitika/Mweru four-element test applies and was not disputed; contempt, being criminal in nature, must be proved beyond reasonable doubt, which the applicant failed to do

Reasoning

The court adopted the test from Samuel MN Mweru v National Land Commission: the terms of the order must be clear, the respondent must know them, must breach them, and the breach must be deliberate. The court acknowledged the contemnor's knowledge of the declarations but found the office she holds is distinct from the impugned PAS office, so no breach of the judgment was proved, and the criminal standard of beyond reasonable doubt was not met.

p. 16
02

Whether the office of Secretary, Administration/Accounting Officer is the impugned office

Holding

It is a distinct office from the nullified Principal Administrative Secretary position, though it too is not statutorily ranked and scheduled

Reasoning

The court found the cited person holds an office that is not statutorily ranked or scheduled in the National Police Service Act and which was not the impugned office in the judgment. The respondents showed the Gazette Notice creating PAS was withdrawn and the PAS position never revived. Her appointment as Secretary Administration was a distinct appointment by the NPSC. Because she did not place herself in the new position, contempt against her personally fails; the primary duty bearers would be the appointing authorities.

p. 15
03

Nature of the declarations on the accounting officer of the National Police Service

Holding

The declarations were in rem, defining the proper accounting officer, and were not directed at the 52nd interested party

Reasoning

The judgment of July 25, 2023 declared the Inspector General the designated Accounting Officer under article 245 and sections 2(1), 67 and 68 of the Public Finance Management Act, assisted by the two DIGs and the DCI Director. The court held such declaratory orders define institutional terms rather than command a named individual, so no personal disobedience by the contemnor could be established.

p. 16
04

Civilians in the National Police Service and section 124 of the National Police Service Act

Holding

The National Police Service is composed only of scheduled ranked officers; regulations on 'civilian staff' can only mean recruitment of civilians into scheduled ranks, and any regulations creating civilian offices would be moribund or vestigial

Reasoning

The court refrained from determining the section 124 issue as a new cause of action but reaffirmed its earlier holding that no civilian establishment exists in the Service. It clarified that the Commission's power to make regulations for employing civilian staff can only be construed as governing entry of civilians into the scheduled ranks, whether at entry points or horizontal entry with professional or technical qualifications, since no constitutional or statutory power exists to create civilian offices.

p. 16
05

Whether the NPSC was in contempt

Holding

Whether the 4th respondent was in contempt does not arise for determination in the application

Reasoning

The court held that the issue of the NPSC's own contempt was not an issue in the application as framed. The Commission was only enjoined as 4th respondent for purposes of the contempt application, and the court considered it now properly guided as to the province of its powers regarding establishment and abolition of offices.

p. 16

Legal principles established

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  • To succeed in civil contempt, the applicant must prove the terms of the order, knowledge of those terms, breach, and that the breach was deliberate; wilfulness and bad faith are then normally inferred
  • Contempt proceedings are criminal in nature and must be proved beyond reasonable doubt
  • The National Police Service is composed only of statutorily scheduled ranked officers and no civilian offices may exist within it; ranks can only be changed by the Cabinet Secretary on the advice of the NPSC by Gazette order
  • Declaratory orders in rem defining the proper accounting officer are not directed at any individual and do not ground personal contempt

Court orders

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  1. 1.The declaration that parties to the application are bound and accordingly guided by the clarifications and findings in this ruling
  2. 2.Each party to bear own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 5(1) of the Judicature Act (Cap 8), Order 52 rule 2(2) of the Rules of the Supreme Court of England 1965, sections 6(c) and 28 of the Contempt of Court Act No 46 of 2016, and sections 3A, 1A, 1B and 63(c) and (e) of the Civil Procedure Act (Cap 21)

Relief refused

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Committal of Bernice Sialaal Lemedeket to civil jail, fine, and allied sanctions for contempt

The office held by the cited person was not the impugned office in the judgment; the declarations were in rem and not directed at her; contempt requires proof beyond reasonable doubt which was not met

p. 16

Refund to the state of salary and benefits allegedly illegally earned, and restraint from reporting to office or drawing salary

The court found no contempt was established and that the new office and accounting officer role constituted a new cause of action not attributable to the contemnor's own act

p. 16

Costs

Each party to bear own costs of the application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the contempt proceedings are in the nature of criminal proceedings determined upon the standard of proof of beyond reasonable doubt, the application will be declined.
p. 16Standard of proof in contempt proceedings and dismissal of the application
the declaratory orders as to the accounting oficer of the National Police Service were not directed at the 52nd interested party but were in rem, defining terms of who is the proper accounting oficer of the service.
p. 16Declarations in rem cannot ground personal contempt
The court considers that the primary purpose of contempt proceedings is to uphold the authority of the court and to achieve compliance with the court orders.
p. 16Purpose of contempt jurisdiction
There exist no establishment of non-ranked and scheduled oficers or stafi of the National Police Service.
p. 16Composition of the National Police Service - no civilian offices
The declaration that parties to the application are bound and accordingly guided by the clarifications and findings in this ruling.
p. 17Final orders
Each party to bear own costs of the application.
p. 17Costs order

Issues in the judgment

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minor

The National Police Service Act is referred to with inconsistent chapter numbers in the judgment: 'National Police Service Act Cap 84' in the quoted judgment versus 'Cap 85 of the Laws of Kenya' in the NPSC replying affidavit

minor

The judgment quotes the summary of the Mweru contempt test as part of the applicant's submission and then states the tests 'are not in dispute' but does not independently set out the elements with attribution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benjamin v Lemedeket & 6 others (Petition E207 of 2022) [2025] KEELRC 2125 (KLR)", Case Analysis (2025). Petition E207 of 2022 (Notice of Motion dated May 22, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2125/eng@2025-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.