Chelimo v Director General National Intelligence Service & another; Haji (Contemnor) (Employment and Labour Relations Cause 256 of 2016) [2025] KEELRC 2916 (KLR)
The bottom line
#Kenya's Employment Court declined to jail the NIS Director General for ignoring reinstatement orders, but urged a swift resolution of the ex-officer's case.
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 affidavit sworn by the 1st Respondent's legal officer should be expunged from the record
- 2.Whether the contempt application is defective for want of a penal notice on the served order
- 3.Whether the Respondents/Contemnor wilfully failed, refused or neglected to obey the court orders of 6th March 2018 as upheld by the Court of Appeal
Key legal issues
#Whether the respondents were guilty of contempt for failing to reinstate the applicant and remit his dues
No contempt found; the respondents' explanation of institutional, security and budgetary constraints was accepted as plausible
The court weighed the subsisting reinstatement orders of 6th March 2018, upheld on appeal, against the respondents' averments that ten years had elapsed, terminal dues had been paid, and that as a security organisation re-engagement required vetting and Treasury/budgetary approvals. It found the explanation plausible but stressed it did not exonerate the respondents from acting towards vetting or retraining the applicant.
Whether the contempt application was incompetent for want of a penal notice on the served order
The defect was argued by the respondents but the court did not rest its decision on it, disposing of the matter on the merits of wilfulness
The respondents contended that service of the order on 17th July 2024 without a penal notice rendered the application fatally defective, relying on Rule 81.9 of the UK Civil Procedure (Amendment No. 2) Rules 2012. The court, however, determined the application on whether contempt was established, without expressly ruling on the procedural objection.
Whether the affidavit sworn by the 1st Respondent's legal officer should be expunged
The affidavit was competent; the deponent had personal and official knowledge and was authorised to swear it
The respondents argued that Order 19 Rule 3(1) of the Civil Procedure Rules permits affidavits based on personal knowledge, and that Section 9(3) of the National Intelligence Service Act empowers the Director General to delegate functions to a member of the Service. The legal officer's affidavit was therefore within her knowledge and competence. The court did not expunge it.
Legal principles established
#- To succeed in civil contempt, the applicant must prove the terms of the order, the respondent's knowledge of those terms, and the respondent's failure to comply
- An order to be enforced by contempt proceedings must bear a prominently displayed penal notice warning of the consequences of disobedience
Court orders
#- 1.The court declined to find the respondents guilty of contempt
- 2.The court expressed the expectation that the respondents resolve the reinstatement/vetting issue in the shortest time possible with agreeable timelines
- 3.Costs in the claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 5 of the Judicature Act (contempt of court jurisdiction)
Relief refused
#Committal to civil jail of the Contemnor for disobeying the orders of 6th March 2018
The court found the respondents' explanation for non-reinstatement plausible given the security nature of the institution and the ten-year lapse; contempt not proved
Immediate remittance of withheld salary and benefits from 30th June 2015 with interest, and continued monthly remittance with unrestricted access to the workplace
Not granted; no contempt finding and terminal dues were said to have been processed and paid out
Costs
Costs in the claim
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.
In the circumstances whilst not finding the respondents guilty of contempt, the court would expect a resolution of the issue in the shortest time possible with possible timelines agreeable in the circumstances. Costs in the claim.
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.
the court held that the test for when disobedience of a civil order constitutes contempt is whether the breach was committed deliberately and mala fide.
This however does not exonerate them from acting towards vetting or retraining the applicant in order to come out with the best possible solution given the orders of this court.
Issues in the judgment
#Judgment inconsistently dates the Court of Appeal decision vacating stay as 24th May 2024 in one passage and 24th May 2025 in another
Contemnor referred to as '3rd contemnor' although only one contemnor is identified on the face of the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chelimo v Director General National Intelligence Service & another; Haji (Contemnor) (Employment and Labour Relations Cause 256 of 2016) [2025] KEELRC 2916 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2916/eng@2025-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.