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ELRCDismissedNotice of Motion dated 7th July, 2025 (arising from Claim heard and determined by judgment delivered 17th February, 2025)

Onyango v Speaker County Assembly of Migori & 3 others (Cause E088 of 2023) [2025] KEELRC 2829 (KLR)

Employment and Labour Relations Court
23 October 2025
2,935 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Gakeri J) determined a Notice of Motion dated 7th July 2025 in which the claimant sought contempt findings and punishment against the 1st respondent (Christopher Odhiambo Rusana), the 3rd respondent (Alfred Bala) and four named officials of the Migori County Assembly Service Board for removing his name from the Migori County Assembly payroll in June 2025, allegedly in disobedience of the judgment delivered on 17th February 2025. The applicant sought a six-month civil jail committal and a fine of Kshs.10 million. The respondents objected that the judgment made no order restraining removal from the payroll, that reinstatement had been declined, and that compensation of two months' gross salary had been awarded in lieu under Section 49(1)(c) of the Employment Act. The court traced the procedural history, noting that the claimant's name had remained on the payroll only because of the interim injunction issued on 29th February 2024 restraining implementation of the 14th December 2023 revocation resolution pending determination of the claim. Applying the settled elements of civil contempt from Samuel M. N. Mweru v National Land Commission and the heightened standard of proof in Mutitika v Baharini Farm Ltd, the court held that no order of 17th February 2025 required retention on the payroll, that the claimant's tenure ended with the judgment, and that nothing barred the removal of his name thereafter. The application was dismissed with 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 removal of the claimant's name from the 4th respondent's payroll in June 2025 constituted contempt of the judgment delivered on 17th February, 2025
  2. 2.Whether the applicant proved the elements of civil contempt (terms of the order, knowledge of the terms, and wilful failure to comply) to the requisite standard
  3. 3.Whether the named respondents should be committed to civil jail and fined Kshs.10 million for contempt

Key legal issues

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01

Whether removal of the claimant's name from the payroll breached the judgment of 17th February 2025

Holding

No contempt was made out; the judgment made no order requiring retention on the payroll, and the retention had been sustained only by the interim injunction of 29th February 2024 which lapsed with the judgment

Reasoning

The court traced the history: the interim order of 29th February 2024 restrained implementation of the revocation resolution pending determination of the claim. The judgment of 17th February 2025 granted only a declaration of unfairness, two months' gross salary compensation, and costs, expressly declining reinstatement. Once the suit was determined, nothing barred removal of the name from the payroll. Alleging contempt was a misrepresentation of the court order.

p. 6
02

Elements and standard of proof for civil contempt

Holding

The court applied the settled three/four-element test and the heightened standard of proof, neither of which the applicant satisfied

Reasoning

Relying on Samuel M. N. Mweru v National Land Commission and Mutitika v Baharini Farm Ltd, the court restated that contempt requires proof of the terms of the order, knowledge, failure to comply, and deliberate or intentional conduct, proved to a standard higher than balance of probabilities. The applicant could not even show an order directed at the named individuals.

p. 5
03

Whether the declaration of unfair revocation reinstated the claimant

Holding

It did not; reinstatement was declined and compensation under Section 49(1)(c) of the Employment Act was awarded in lieu

Reasoning

The applicant's argument that the declaration rendered the County Assembly resolution void and reinstated him was rejected as convoluted. Both revocation/reinstatement and compensation are discretionary reliefs under Section 49(1)(c); the court had declined reinstatement with reasons and awarded two months' gross salary instead, ending the claimant's tenure on 17th February 2025.

p. 4

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 by the respondent, and failure to comply, with wilfulness and bad faith inferred but rebuttable
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
  • Non-compliance must be wilful and mala fides; bona fide unreasonable non-compliance does not constitute contempt

Court orders

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  1. 1.The applicant's Notice of Motion dated 7th July, 2025 is dismissed with costs

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; Section 13 of the Employment and Labour Relations Court Act; Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Commitment of the 1st, 3rd and named respondents to civil jail for 6 months for contempt

The applicant failed to prove contempt; the judgment of 17th February 2025 made no order requiring retention on payroll, and reinstatement was never granted

p. 6

Fine of Kshs.10 million upon conviction for contempt

No case of wilful disobedience was established

p. 5

Costs

The Notice of Motion dated 7th July, 2025 is dismissed with costs to the respondents

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.

In conclusion, the applicant's Notice of Motion dated 7th July, 2025 is without merit and it is accordingly dismissed with costs.
p. 6Final orders - dismissal of contempt application
Consequently, nothing prevented the respondents from removing the applicant's name from the 4th respondent's payroll on any day after 17th February, 2025 as no court order barred them from doing so.
p. 6Absence of any order breached
In our view, the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, almost but exactly beyond reasonable doubt.
p. 6Standard of proof in contempt proceedings
It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) Knowledge of these terms by the Respondent, (iii). Failure by the Respondent to comply with the terms of the order.
p. 5Elements of civil contempt

Issues in the judgment

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minor

Inconsistent citations for the same authority: Mutitika V Bahari Farm Ltd is cited as [1985] KLR 229 in submissions and [1985] KLR 234 in the analysis

material

The judgment bears the marking 'DRAFT' at the end despite bearing a signature block and delivery date

minor

The document is styled a judgment/ruling but the body refers to 'The courts find this argument convoluted', plural, in a single-judge bench

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, "Onyango v Speaker County Assembly of Migori & 3 others (Cause E088 of 2023) [2025] KEELRC 2829 (KLR)", Case Analysis (2025). Notice of Motion dated 7th July, 2025 (arising from Claim heard and determined by judgment delivered 17th February, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2829/eng@2025-10-23

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