Miriam Wambui Thiriku v Quresh Ahmed Hussein & Bomas Of Kenya (Cause 1652 of 2013) (Employment and Labour) [2014] KEIC 12 (KLR)
The bottom line
#The Employment Court refused to jail employers for contempt because the ex-employee couldn't prove deliberate disobedience beyond reasonable doubt.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did the 1st and 2nd respondents wilfully fail to honour the order dated 15th October 2013?
- 2.If the answer to the above is in the affirmative, what penalties are available to the Claimant/Applicant?
Key legal issues
#Whether the Respondents wilfully disobeyed the interim orders of 15th October 2013
The Applicant failed to prove wilful disregard of the order to the criminal standard; the Respondents complied once the Claimant presented herself at the workplace, reinstating her and paying her salary
The court found the order was served on 1st November 2013, after the employment had already been terminated on 15th October 2013. The Respondents did not seek to set aside the order but asserted willingness to obey it, and demonstrated compliance through payment of salary on 17th March 2014. Without proof of wilfulness beyond reasonable doubt, committal could not issue.
Material non-disclosure by the Applicant when obtaining the interim orders
The Claimant was guilty of material non-disclosure because she did not disclose that her employment had already been terminated on 15th October 2013 when she sought injunctive relief
The court recorded that the Claimant's employment was terminated by letter dated 15th October 2013, the same date the order was extracted, and that she failed to disclose the disciplinary process and termination to the court. The court observed that rushing to obtain interim orders with final effect where facts are contested is inimical to the administration of justice and should be discouraged.
Standard of proof applicable in committal for contempt proceedings
Contempt is a criminal offence; the applicant bears the onus of proving the contempt beyond reasonable doubt
Because committal attracts penal sanctions, the court applied the criminal standard of proof rather than the civil standard. The Applicant's failure to discharge that burden was fatal to the application, irrespective of the substance of the allegations of defiance such as lock-out, non-payment of salary and denial of duties.
Legal principles established
#- Contempt of court is a criminal offence and the burden of proof on the applicant is the criminal standard of proof beyond reasonable doubt
- Wilful disobedience of a court order is punishable as contempt even if the party believed the order was improperly obtained; the remedy is to vary or discharge the order
Court orders
#- 1.The Application for committal for contempt of court dated 16th May 2014 is dismissed
- 2.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent contempt jurisdiction of the Employment and Labour Relations Court over disobedience of its orders issued by Marete J on 15th October 2013
Relief refused
#Committal of the Respondents to Civil Jail for contempt of the order of 15th October 2013
The Applicant failed to prove wilful disobedience to the required criminal standard of proof beyond reasonable doubt; the Claimant was reinstated and paid salary when she presented herself at the workplace
Costs
The Application is dismissed with costs in the cause.
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.
For these reasons, the Application is dismissed with costs in the cause.
The offence of contempt is a criminal one and attracts penal sanctions. The onus of proof lies on the Applicant and the threshold is like in any other criminal proceedings beyond reasonable doubt.
Rushing to grant interim orders which have final effect is inimical to administration of justice and is to be discouraged.
The Claimant / Applicant was guilty of material non-disclosure to the Court at the time she obtained the Court Order.
The Applicant has failed to discharge its burden of proof to the standards required.
Issues in the judgment
#Conflicting dates on the face of the judgment: signed and dated 11th December 2014 but signed, dated and delivered 17th December 2014
The judgment refers to 'Advocate for the Petitioner' in the appearance list although the parties are described throughout as Claimant/Applicant and Respondents in an employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miriam Wambui Thiriku v Quresh Ahmed Hussein & Bomas Of Kenya (Cause 1652 of 2013) (Employment and Labour) [2014] KEIC 12 (KLR)", Case Analysis (2014). Not stated in judgment (Application dated 16th May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/12/eng@2014-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.