Ong’era v County Govenrment of Kisii & 2 others (Petition E005 of 2024) [2025] KEELRC 2821 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed a bid to jail Kisii's Governor for contempt because the applicant couldn't prove a breach of the court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether personal service of the orders with a penal notice was proved
Personal service was not proved, but the respondents' knowledge of the orders was established, superseding personal service; however no penal notice was shown
The applicant's affidavit only asserted service on 10th May 2024 without stamped/signed copy or affidavit of service on the CTS. Although the Court of Appeal in Ochino v Okombo requires personal service with penal notice, subsequent authority holds knowledge supersedes personal service. The respondents' claim that the orders were ambiguous and their claim to have implemented them demonstrated knowledge. Yet the applicant neither alleged nor furnished evidence of a penal notice.
Whether the orders of 8th May 2024 were ambiguous and incapable of enforcement
The orders were neither ambiguous nor contradictory save that the reinstatement order was not implementable since the applicant's employment had never been terminated
The respondents argued the finding of no constructive dismissal contradicted the reinstatement order. The court held the first two orders meant the applicant was to resume duty immediately since the compulsory leave was quashed; no reinstatement was needed. The respondents did not raise ambiguity in good faith, having never raised it until the contempt application.
Whether the respondents breached or failed to comply with the orders
No breach proved; the applicant himself failed to resume duty and later resigned voluntarily, concealing this from the court
The 2nd respondent reassigned the applicant by letter dated 29th May 2024, and the applicant's resignation of 4th November 2024 was accepted. The applicant never averred he reported to work after the judgment. The orders were self-executing and did not require a response to his letters. He was guilty of material non-disclosure of the resignation.
Legal principles established
#- The elements of civil contempt are: terms of the order; knowledge of the terms; breach or failure to comply; and deliberateness, proved to a standard higher than balance of probabilities but below beyond reasonable doubt
- Knowledge of a court order supersedes the requirement of personal service
- A court order alleged to have been breached must be clear and unambiguous; a party will not be found in contempt where an order is unclear
- The applicant bears the burden of proving breach of court orders; he who alleges must prove
Court orders
#- 1.The application dated 27th June, 2024 is dismissed
- 2.Parties shall bear their own costs
- Jurisdiction invoked
- Section 5(1) of the Judicature Act; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ong’era v County Govenrment of Kisii & 2 others (Petition E005 of 2024) [2025] KEELRC 2821 (KLR)", Case Analysis (2025). Notice of Motion dated 27th June, 2025 (ELRC, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2821/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.