Elizabeth Alila Ochaye v County Government of Migori & another

3. The appellant wrote to the County Secretary on 10th March 2021, seeking an explanation over the changes but instead of responding to her letter, the respondents served her with a notice to show cause dated 5th March 2021, directing her to respond to the allegations in that notice within 30 days. The notice to show cause also informed the appellant that a Special Disciplinary Committee (the Committee) had been established to conduct disciplinary proceedings against her which were scheduled to take place on 9th April 2021, and on 25th March 2021, the chairperson of the Committee invited her to appear before the Committee on 9th April 2021 for the hearing. 4. The appellant moved the ELRC through the petition dated 5th April 2021 and led on 7th April 201 against the respondents seeking several reliefs. Simultaneous with the petition, the appellant led a notice of motion of even date and sought interim conservatory orders to restrain the respondents from proceeding with the disciplinary hearing before the Committee pending inter parties hearing and, thereafter, pending the determination of the petition. 5. The application was placed before the ELRC on 8th April 2021 ex-parte and it directed that both the application and the petition be heard through written submissions and gave timelines for service, lling of responses and submissions and set the matter for mention on 8th June 2021 to conrm compliance and to take a date for highlighting of submissions. It then issued an order that status quo obtaining as of that day, 8 April 2021 be maintained pending further orders of the Court. Notwithstanding the exparte order, the disciplinary proceedings went on but the appellant did not attend. The Committee found that the accusations against the appellant had been proved and recommended termination of her contract of employment which the 2nd respondent terminated on 13th April 2021. 6. The appellant then led the application seeking to cite the 2nd respondent for contempt of court for allegedly disobeying the orders of 8th April 2021; an order setting aside or quashing the 2nd respondent’s decision dated 13th April 2021; committal of the 2nd respondent to civil jail for six months for contempt of court and an order requiring the respondents to pay Kshs. 1,000,000 for the alleged contempt of court. The application was supported by the appellant’s adavit sworn on 2nd April 2021, a supplementary adavit sworn on 18th May 2021 and a further adavit sworn on 24th May 2021. 7. In response to the application, the respondents led replying adavits sworn on 19th May 2021 and 24th May 2021 by the 2nd respondent and Mr. Christopher Rusana, the County Secretary on behalf of the 1st respondents, respectively. The 2nd respondent deponed that he was neither served with the order nor was he aware of it, maintaining that the email address that was purportedly used eected service on him did not belong to him and was not familiar to him. He therefore contended that the application did not satisfy the threshold for contempt of court. 8. The 2nd respondent urged the court not to interfere with the internal disciplinary process and the 2nd respondent’s lawful exercise of authority under sections 31(a), 31(b) and 40 of the County Governments Act to dismiss a County Executive Committee Member at any time on the stated grounds. According to the 2nd respondent, the order of status quo of 8th April 2021 meant that the disciplinary proceedings which had already commenced, were to continue since the ELRC did not issue injunctive orders restraining them from proceeding with the disciplinary process. Mr. Rusana took a similar view on behalf of the 1st respondent, that the application was founded on a misapprehension of the law and the meaning of the status quo order. 9. In its ruling foresaid, the ELRC dismissed the application, clarifying that the order directing the parties to maintain status quo permitted the disciplinary process to continue and that had it intended to interdict the disciplinary process, it would have granted the restraining orders the applicant had sought or directed that the status quo obtaining prior to the commencement of the disciplinary process be https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1934/eng@2026-09-25 2

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maintained. On that basis, the ELRC found that the elements of contempt of court had not been established and dismissed the application. 10. Aggrieved the appellant lodged the instant appeal through a memorandum of appeal dated 30th November 2021 on seven (7) grounds contending that the ELRC erred in law and fact in: by construing the order of 8th April 2021 requiring maintenance of status quo as permitting the disciplinary proceedings to continue; contradicting the ordinary meaning of status quo, which means the existing state of aairs at the time of the order; nding that status quo extended to and authorized a future event that had not occurred when the order was made, a construction which rendered the order futile contrary to the principle that court orders are not issued in vain; disregarding the binding decision in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLR that status quo refers to the present situation or existing state of aairs at the time the order is made but not past or future events; failing to nd that the disciplinary proceedings conducted on 9th April 2021 and the decision terminating her contract of employment were in breach of the order and were therefore null and void; failing to nd that she was entitled to reinstatement to her position as the County Executive Committee Member in charge of Environment, Natural Resources and Disaster Management in the rst respondent and nding that contempt of court had not been proved despite the service of the order. 11. When the appeal came up for plenary hearing through the Court’s virtual platform, Mr. Ahomo, learned counsel appeared for the appellant whereas Ms. Msando learned counsel appeared together with Mr. Owino and Ms. Some for the respondents. Both counsel relied on their written submissions in arguing the appeal with limited oral highlights. 12. Mr. Ahomo submitted through his written submissions dated 5th May 2025, that the order issued on 8th April 2021 directing that the status quo obtaining as of that day, 8th April, 2021, be maintained pending further orders of the court, was clear and it stopped the disciplinary proceedings that were due for 9th April 2021. Counsel faulted the ELRC for construing the order as permitting the respondents to continue with the disciplinary hearing, and cited Shimmers Plaza Limited v National Bank of Kenya Limited (supra) for the proposition that status quo means the present situation, the way things stand as at the time the order is issued or the existing state of things thus, it cannot relate to the past or future occurrences or events. He maintained that once the order was served, the respondents should not have proceeded with the disciplinary hearing on 9th April 2021, or issue the decision dated 13th April 2021 terminating the appellant’s contract of employment. He asserted that the disciplinary proceedings and the resultant decision were null and void. 13. Counsel posited the elements of contempt of court were established and the ELRC erred in holding otherwise. It was his position that the order was extracted and served upon the respondents through their known email addresses as evidenced by the adavit of service sworn by the process server. He cited Mathews v Masika [2022] eKLR for proposition that service through a party’s last conrmed and used email address is valid, particularly where the party neither rebuts the evidence nor discloses an alternative email address. 14. Regarding the denial by the 2nd respondent that he was served, counsel maintained that the 2nd respondent was served through his known email address which the appellant previously used for ocial communication while serving in the County Executive Committee; that the 2nd respondent did not provide evidence that the email address was not his and that he did not disclose the alleged correct email address. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1934/eng@2026-09-25 3

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15. Counsel submitted therefore, that the respondents acted in breach of the court order by proceeding with the disciplinary hearing and rendering the decision dated 13th April 2021 terminating the appellant’s contract of employment and urged the court to allow the appeal with costs. 16. Mr. Ahomo, however, informed the Court that the appellant was not pursuing the order for reinstatement to her position since it was no longer tenable due to lapse of time and change in the oce holder of the 2nd respondent and further that the substantive petition had since been heard and appellant awarded damages for the unfair termination of employment. 17. Opposing the appeal, Ms. Some submitted through her written submissions dated 10th June 2025, that the ELRC correctly applied the legal principle governing status quo orders in interpreting the order dated 8th April 2021. It was counsel’s contention that had the ELRC intended to stop the disciplinary process, it would have issued express orders restraining the respondents from conducting the disciplinary hearing. She also cited Shimmers Plaza Limited v National Bank of Kenya Limited (supra) on the meaning of status quo. She asserted that by 8th April 2021, the disciplinary process had already commenced and it was at an advanced stage hence status quo meant continuation of the disciplinary process. Counsel cited Republic v National Environment Tribunal, exparte Palm Homes Limited & another [2013] eKLR in support of this submission. 18. Counsel maintained that the order issued on 8th April 2021 did not stop the disciplinary process and the 1st respondent was entitled to undertake the disciplinary action, subject to the requirements of Article 47 of the Constitution and the Fair Administrative Action Act. Counsel cited Judicial Service Commission v Mbalu Mutava & another [2015] eKLR, for the proposition that the right to fair administrative action is contextual and requires reasonable, good-faith procedure, including notice and an opportunity to be heard. She further cited Kenya Revenue Authority v Menginya Salim Murgani [2010] eKLR; Local Government Board v Arlidge [1915] AC 120; Selvarajan v Race Relations Board [1975] 1 WLR 1686 and R v Immigration Appeal Tribunal exparte Jones [1988] 1 WLR 477 in support of similar proposition. 19. Regarding contempt of court, counsel asserted that the disciplinary proceedings were lawful and the ELRC correctly found that the appellant did not prove the elements of contempt of court. She cited North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi [2016] eKLR, for the proposition that an applicant must prove that the terms of the order were clear and binding, the alleged contemnor had knowledge of the order and the breach thereof was deliberate conduct. She further cited Teachers Service Commission v Kenya National Union of Teachers & 2 others [2013] eKLR and Mutitika v Baharini Farm Limited [1985] KLR 229 in support of this submission. 20. It was counsel’s further contention that service of the order on the 2nd respondent was not proved; that it was not also proved that the 2nd respondent had knowledge thereof and that the email address allegedly used to serve was not shown to belong to the 2nd respondent as his ocial or last known email address. Counsel distinguished the case of Mathews v Masika (supra) relied upon by the appellant from the circumstances of the present case on the grounds that the respondent in the former admitted to having received the documents through the relevant email address, whereas in the present case, the 2nd respondent denied knowledge of the email address allegedly used for service which the appellant did not rebut. 21. Counsel maintained that the appeal lacks merit and that the ELRC correctly interpreted the order and having found no breach, it properly dismissed the application for contempt. She cited Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR and Mbogo & another v Shah [1968] EA 98, in urging that an appellate court should not interfere with the exercise of judicial discretion by a https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1934/eng@2026-09-25 4

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lower court unless it is shown that the discretion was based on misdirection, consideration of irrelevant matters, failure to consider relevant matters, or it was plainly on a wrong conclusion. 22. Concluding her submissions, she asserted that the appellant’s admission that reinstatement was no longer viable, demonstrated that the appeal was moot and that award of damages for unfair termination in the main petition constituted an eective and adequate remedy, rendering the appeal overtaken by events since the appellant had not suered any prejudice. She urged the Court to dismiss the appeal with costs. 23. We have carefully considered the appeal, the submissions, the authorities relied on by the parties and the applicable law. The issues for determination are whether the appeal is moot and whether the appellant proved contempt of court against the 2nd respondent as required by law. 24. On the rst issue, the appellant’s counsel informed the Court during plenary hearing of the appeal that the appellant was not pursuing the order for her reinstatement to her position due to the lapse of time and change of the oce holder in the 2nd respondent and further that the substantive petition had since been heard and determined with the eect that the appellant was awarded damages for the unfair termination of her contract of employment. Following that concession, the respondents argued that the appellant’s admission that her reinstatement was no longer viable and that the petition had been concluded and damages awarded, demonstrated that the appeal had been overtaken by events and it was therefore moot. 25. In her memorandum of appeal, the appellant sought the following orders, namely: that the appeal be allowed with costs; that the ruling and order of the ELRC dated 1st July 2021 be set aside and in place therefor be substitute with orders allowing the appellant’s application and that the court grant such orders as it may deem t. In the application, the appellant sought orders, namely: that the 2nd respondent be cited for contempt of court; the decision made by the 2nd respondent on 13th April 2021 terminating the appellant’s contract of employment be quashed and the respondent be reinstated; the 2nd respondent be imprisoned for a period of six (6) months for contempt of court; the respondents be ordered to pay Kshs. 1,000,000 or such other sum as the court will nd reasonable for the disregard of lawful court orders, and in default his properties be attached and sold in execution. 26. The parties conceded that the main petition was heard and determined and that the appellant was awarded damages for the wrongful termination. They did not however attach a copy of the nal decision of the court to enable this Court appreciate the full eect of that decision. That notwithstanding, is the appeal moot? The appellant stated that she was no longer interested with reinstatement and that the petition was hears and she was awarded damages for wrongful termination, perhaps demonstrating why the reinstatement she had sought would not be viable. 27. In Kenya Railways Corporation & 2 others v Okiya Omtatah Okoiti & 3 others [2023] KESC 38 (KLR) the Supreme Court stated that mootness of a matter arises where a live controversy no longer exists between parties to a suit and the decision of the court, in such instance, would have no practical eect subsequent to the ling of a suit. 28. In National Assembly of Kenya & another v Institute for Social Accountability & 8 others [2017] KECA 170 (KLR), this Court stated the same position that mootness means a matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights. 29. It is generally accepted that courts do not determine moot or academic questions or grant orders that will have no practical eects to the parties, but mootness is not an absolute bar and does not deprive the court of its jurisdiction. The court may entertain an appeal even if moot where the interests of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1934/eng@2026-09-25 5

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justice so require, or where some issues remain unsettled or live, the court may still proceed to hear the matter notwithstanding the mootness of some of the issues, more so, if they raise matters of public importance. 30. Kenya Railways Corporation & 2 others v Okiya Omtatah Okoiti & 3 others (supra), the Supreme Court cited with approval Re Opposition by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793 where the Supreme Court of Canada held that in certain circumstances the court may entertain an appeal which has become moot, taking into account the importance of the issue to be determined. It also cited AAA Investments (Proprietary) Limited v Micro Finance Regulatory Council and Another [2006] ZACC 9 in which the Constitutional Court of South Africa held that in deciding whether an issue is moot, what needs to be brought into the equation is whether deciding the matter is in the interests of justice. 31. Earlier in Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23, the Constitutional Court of South Africa held that the jurisdiction to decide issues on appeal even if they no longer present existing or live controversies, must be exercised according to what the interests of justice require. And in Agribee Beef Fund Ltd and Another Eastern Cape Rural Development Agency and Another [2023] ZACC 6, the same court stated that mootness is not an absolute bar to the justiciability of an issue and the court may entertain an appeal, even if moot, where the interests of justice so require. 32. The jurisprudence emerging from those decisions is that the court has discretion to entertain an appeal even if moot, where the interests of justice require. The question that we must ask is whether it is in the interest of justice to determine the instant appeal. It is common ground that the contractual nexus between the parties expired with euxion of time the moment the new county government came into oce and were the appellant to be successful, her prayer that the decision made by the 2nd respondent terminating her contract of employment be quashed would not result in her contract of employment being reinstated. This perhaps informed her concession that she was not interested in the order reinstating her into oce. 33. We are of the view, that although some issues may be moot, there is an important question of contempt of court which we think is necessary for the court to consider because it goes to the heart of the administration of justice and the authority of the court. 34. On contempt, the appellant submitted that the respondents acted in disregard of the court order by proceeding with the disciplinary hearing and rendering the decision terminating her contract of employment despite the order having been served on them. The respondents countered that the disciplinary proceedings were lawful because the order did not stop the process and that the order was not served on them. 35. Contempt of court is the willful disobedience of the court order, a conduct that impairs fair and ecient administration of justice. Courts possess the inherent power to enforce compliance with their lawful orders through sanctions imposed through contempt of court and it is in this regard that section 5(1) of the Judicature Act grants both the High Court and the Court of Appeal power to punish for contempt of court which extends to upholding the authority and dignity of subordinate courts. (Githiga & 5 others v Kiru Tea Factory Company Ltd [2023] KESC 41 (KLR)). 36. The Supreme Court of India in T. N. Gadavarman Thirum Mulpad v Ashok Khot and Another [2006] 5 SCC) held that without sanctions for the disobedience of court orders, there would be a breakdown in the rule of law and administration of justice since disobedience of court orders strikes at the very root of the rule of law on which the judicial system rests as the foundation of a democratic society. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1934/eng@2026-09-25 6

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37. In order for the court to punish for contempt, it must be proved that that the terms of the order were clear and unambiguous; that the order was served or the alleged contemnor had knowledge of the order and that there was willful disobedience of the order. The standard of proof in contempt proceedings as was stated by this court in Mutitika v Baharini Farm Ltd [1985] eKLR must be higher than proof on the balance of probabilities but not exactly, beyond reasonable doubt. 38. In Kenya National Union of Teachers & 2 others v Teachers Service Commission [2018] KECA 214 (KLR) this Court stated that the elements a court should consider in contempt of court proceedings are the existence of the order made by a court of competent jurisdiction and which was allegedly disobeyed; identication of the party to whom the order allegedly disobeyed was addressed; determination of whether the order allegedly disobeyed required the party to do or to refrain from doing something; whether the party had knowledge of both the existence of the orders as well as the requirements in such orders as to what the party was required to do or not to do. This is because as Romer L.J stated in Hadkinson v Hadkinson [1952] 2 All ER 567, it is unqualied obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction whether regular, irregular or null, to obey it unless and until it is discharged or set aside. 39. The appellant argued that the respondents disobeyed the order, while the respondents maintained that the order did not restrain them from conducting the disciplinary proceedings. The order which the respondents were accused of disobeying was in the following terms: “ (vii) THAT in the meantime status quo obtaining as of today 8 April 2021 be maintained pending further orders of the Court.” 40. There is disagreement between the parties on what the order required the respondent to do or not to do. While the appellant maintained that the order required that the existing state of aairs at the time it was issued to remain in place, that is; the disciplinary process was halted, the respondents asserted that the order meant that the disciplinary process which had commenced was to proceed. When the appellant’s application for contempt was heard, the ELRC stated that the situation obtaining on 8 April 2021 was that the disciplinary proceedings against the applicant were ongoing since a show-cause notice had been issued and an invitation to a hearing extended to her and therefore by directing that the status quo be maintained, it allowed the disciplinary hearing to proceed otherwise if it intended to stop the disciplinary process, it would have issued the restraining orders the appellant sought or ordered status quo ante the initiation of the disciplinary process. 41. It would appear from the arguments by parties and the position taken by the ELRC, that the terms of the order were ambiguous and as the ELRC itself conceded, orders of status quo have often been open to dierent interpretations with attendant confusion on what the parties ought to refrain from or proceed with. Even though the decision of Shimmers Plaza Limited v National Bank of Kenya Limited (supra) was cited before it, the ELRC was clear that there was misinterpretation of what its orders meant. It was due to that ambiguity that the order was subjected to dierent interpretations with each side arguing on what the court order required to be done or not to be done with the appellant arguing that the disciplinary process was halted while the respondents maintained that the process was allowed to proceed since it had already commenced. 42. The dierent interpretations ended up with the ELRC clarifying that it did not stop the disciplinary process and that the status quo it meant and which obtained on the material date, was that the disciplinary proceedings against the applicant were ongoing and were to continue since the notice to show cause had been issued and the appellant had been invited to attend the hearing. The ELRC was https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1934/eng@2026-09-25 7

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bast placed to interpret what its own order meant and having done so; we are unable to determine otherwise. 43. Contempt of court proceedings must be based on clear and unambiguous orders. Where the terms of the order are not clear or are ambiguous and capable of dierent interpretations, such an order is not capable of willful and deliberate disobedience because what is punished is the willful disobedience of a clear and unambiguous court order. In Indian Airports Employees Union v Ranjan Catterjee & Another [AIR 1999 SC 880 it was held that in order to amount to civil contempt, disobedience must be willful but if disobedience is based on the interpretation of the court order, notication and other relevant documents, it does not amount to willful disobedience. 44. We are satised that the order was ambiguous as its compliance depended on each side’s understanding and interpretation and therefore it was incapable of willful and deliberate disobedience. Moreover, the ELRC subsequently explained what the order meant, which aligned with the interpretation adopted by the respondents. 45. There is also the question of whether the order was served. The appellant submitted that the order was served through the respondents’ email addresses, while the respondents maintained that there was no service and that the email addresses allegedly used did not belong to the 2nd respondent and it was unknown to him. Order 5 rule 22B (1) of the Civil Procedure Rules provides that Summons (documents) sent by Electronic Mail Service shall be sent to the defendant’s last conrmed and used E-mail address. It also requires the process server to le an adavit of service to conrm such service. It was the duty of the person who eected service to conrm that service was eected and that the email addresses used were the last known and used email addresses of the persons served. 46. The appellant stated through her further adavit sworn on 27th May 2021, that she knew the 2nd respondent’s email addresses through which she previously communicated with him and she was the one who gave those email addresses to her advocate. There is no adavit of service by the process server. What is on record is a supporting adavit sworn by Emmanuel Omondi Owedhi on 22nd April 2021 through which he stated that he served the 1st respondent on 8th April 2021 through the email address info@migori.co.ke that was given to him by the appellant. The following day 9th April 2021, he again served the 1st respondent through another email address the appellant gave him. He was further given four other email addresses for the 2nd appellant and he served him through those email addresses. 47. There is also another supporting adavit sworn by the appellant’s Advocate Mr. Paul Amuga on 22nd April, 2021 stating that he instructed the process server to serve the order upon the respondent and that the process server informed him that he served the respondents with the order through their known addresses. He also stated that out of abundant caution, he served the same order upon the respondents’ counsel Mr. Cephas Agure through WhatsApp and, therefore, the respondents could not deny service. 48. It is not clear to us who gave the process server the email address through which he rst used to serve the 1st respondent. This is because he stated that the appellant gave him another email address on 9th April 2021 and he again served the 1st respondent without saying the addresses were the known and last used email addresses and if so, when they were last used. However, the appellant stated in her further adavit that she gave two email addresses belonging to the 2nd respondent but she did not mention that she gave the 1st respondent’s email address(es). The process server again stated that the appellant subsequently gave him four other email addresses which the appellant did not say she did. Which of the many email https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1934/eng@2026-09-25 8

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addresses said to have been used to serve the 2nd respondent was his last known and used email address? The advocate stated the he only served the respondents’ counsel and no the respondents. 49. Contempt of court being an act of personal responsibility, the contemnor must have personal knowledge of the clear terms of the order and must have deliberately and willfully disobeyed the order and the breach thereof has to be proved to the required standard. This is because when exercising its contempt jurisdiction, the court is primarily concerned with enquiring into whether the contemnor is guilty of intentional and willful disobedience of the court order since every party before the court and even those not but to whom the order is directed, are expected to obey the order in its spirit and substance with due dignity for the institution. (See Mahinderjit Singh Bitta v Union of India & Others 1 A No. 10 of 2010). 50. And as the Supreme Court of Canada stated in Carey v Laiken, 2015 SCC 17, the party alleged to be in breach must have intentionally done the act that the order prohibited or intentionally failed to do the act that the order compelled. The court’s contempt power should be used cautiously and with great restraint as it is an enforcement power of last resort rather than rst resort. 51. In the present case, it was not suciently demonstrated that the respondents deliberately violated the order. The order was not only ambiguous but capable of dierent interpretations and therefore, it could not be the basis of committal for contempt of court. Even as the court must protect its authority, it must do so in clear cases where the respondents truly committed contempt of court. In that regard, there is need for the courts, whenever they issue status quo orders, to be clear in terms of what the parties do or refrain from doing, for ease of compliance and enforcement and punishment in case of breach and disobedience thereof. 52. Ultimately, we nd no merit in this appeal and we dismiss it with no order on costs. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER ,2026. K. M’INOTI ………………………… JUDGE OF APPEAL E. C. MWITA ………………………… JUDGE OF APPEAL B. ONGAYA ……………………… JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1934/eng@2026-09-25 9

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