REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E154 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
DAVID MUCHOKI MURIUKI……….…….……………….... PETITIONER
VERSUS
KENYA PIPELINE COMPANY PLC…..…………………. RESPONDENT
RULING
The Petitioner commenced the instant suit on 26th May 2026 vide Petition dated on even date filed together with a Notice of Motion of even date seeking various orders pending inter partes hearing, hearing and determination of the motion and pending hearing and determination of the Petition.
When the matter came up on 11th May 2026, the court directed service and further directions would be issued on 18th May 2026 when prayer No. 2 of the Motion was granted. Counsel for the Respondent had no objection and was accorded 10 days to file and serve a response which was filed on 30th May 2026.
Subsequently, on 19th June, 2026, the Respondent’s counsel filed a Motion under Certificate of Urgency seeking various orders but principally to vacate, discharge, vary and/or set aside the interim orders dated 18th May 2026 on the status quo. Directions on service and mention were issued on 22nd June 2026.
Strangely, on 26th May 2026 the petitioner’s counsel filed a application for contempt for alleged violation of the interim orders dated 18th May 2026 seeking orders that;
1. Spent.
2. The court be pleased to issue a notice to show cause for the alleged contemnor Pius Mwendwa to attend court personally and show cause why this court should not punish him for contempt.
3. This court be pleased to punish the respondent’s Ag. Managing Director for contempt of court by committing him 6 moths in Civil jail for disobeying the court order issued on 18th May 2026.
4. The court to make any order it deems just and expedient.
The motion is expressed under Section 5 of the Judicature Act and based on the grounds set out on its face and the Supporting Affidavit of the Petitioner/Applicant who deposes that despite being aware of the order, after service on 20th May 2026, the alleged contemnor had through backdated and present communication issued memos and letters to staff and contractors on internal organizational changes specifically;
(i) Reassigning the petitioners role in various projects to the General Manager (Operation and Engineering).
(ii) Replacing the Petitioner as the Project Engineer for a number of Projects which were under him.
(iii) Compelling the Petitioner to immediately hard-over all projects documentation, correspondence, report drawings, approvals, contractual records and other relevant materials to the General Manager (operations and Engineering).
The Petitioner/Applicant deposes that the alleged contemnor was personally served with the court order on 20th May 2026 but at 5.10 PM on the same day forwarded a backdated letter dated 15th May 2026 to a contractor by the name Warren Enterprises Ltd informing them of the reassignment of the role of project Engineer to General Manager (Operation and Engineering Services) and another letter to Weld-Con Ltd informing it about the re-assignment of role and later issued to memo on the appointment of Engineer Moses Tawuo as the project Manager in Six (6) Projects the Petitioner/Applicant was handling and sought clarification the hand over process.
The affiant deponed that the alleged contemnor was blatantly violating the court order and failed to heed demands brought to his attention by counsel.
Respondent’s case
Mr. Pius Mwendwa, the Respondent’s Ag Managing Director Vide a Replying Affidavit sworn on 18th June 2016, in Opposition to the Contempt Application deponed that on 12th May 2016 the Petitioner was issued with an internal memorandum directing him to handover on-going projects under his supervision to user departments to enhance efficiency and letter to Warren Enterprises and Weld Con Ltd were signed on 15th May 2026 and were dispatched by administration staff and interim orders were issued on 18th May 2026.
That the internal memo dated 20th May 2026 reflected decisions made prior to the court order and thereafter the court order dated 20th May was served with a forwarding letter of even date through the legal Department and he only learnt of the order upon service and the letters were transmitted on the evening of 20th May 2026.
That by dint of the Petitioner’s request for clarification of the handover of on-going projects there were uncertainties as to the practical application of the said order to the management of on-going projects.
The affiant deponed that since the decision to transfer on-going project had already been made and communicated to the Petitioner, the letters of 15th May 2026 related to earlier decisions and had been signed ready for dispatch and the evening dispatch did not establish that the letters were backdated and the letters to the two companies were not part of the restructuring or alteration of the petitioner’s employment terms, who remains the substantive General Manager Infrastructure Development of the Respondent and continued to discharge the functions of the office with full salary and allowances and no assignment of roles had taken place after service of the court order.
That the six (6) projects were between the Respondent and the 3rd parties as standalone Engineering Procurement and Construction (EPC) and the Respondent had contractual power to appoint, change or replace designated Project Engineers or Project Manager.
That the interim Orders related to Petitioner’s rank and designation, and terms and conditions of service, remuneration and benefits, not intended to freeze or suspend the Respondent’s contractual rights and obligations in relation to 3rd parties contractors hence the decision to designate the General Manager (Operations and Engineering Services) to act as Project Engineer/Manager.
The affiant denies that he acted in disdain, disregard or contempt toward the dignity and authority of the court and acted in good faith.
That none of the elements of contempt had been established as the letter to the companies were signed on 15th May 2016 and the submission was routine. There was no wilful, deliberate or contumacious intent to disobey the court order.
The Petitioner’s memorandum sought clarification of the implementation of the handover of on-going projects and the application was based on a misunderstanding of the scope of the court order and neither the affiant nor the Respondent had acted in breach of the court order.
That the application had been brought in bad faith and with ulterior motives of intimidating the management of the respondent. That the application was devoid of merit and was for dismissal.
I have considered the submissions on record.
The singular issue for determination is whether the Ag. Managing Director of the Respondent is guilty of contempt of court.
The principles that govern civil contempt are well settled.
Section 5 of the Judicature Act provides:
(1) The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.
(2) An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary criminal jurisdiction of the High Court.
In Shimmers Plaza Ltd v National Bank of Kenya Ltd (2015) KECA 945 (KLR) the Court of Appeal stated;
“…This provision subjects the proceedings of contempt of court in Kenya to the current law governing the High Court of Justice in England. The law governing the justices in England previously was subject to common law and Order 52 of the Supreme Court Rules. However, England enacted the Contempt of Court Act, of 1981 which supplements its common law contempt of court offences. The prevailing law of contempt in England is now found in the Contempt of Court Act of 9181 and Part 81 of the Procedure in the Civil Procedure Amendment No. 2 Rules, 2012 the replaced Order 52 of the Supreme Court Rules for contempt proceedings in the Supreme Court of England. This court has interpreted and applied the said law locally in may important decision…”
See also Christine Wangari Chege v Elizabeth Wanjiru Evan & 11 others Civil Application No. 233 of 2007. The essence of obeying court orders and the need to punish contempt of court has been underlined in many decision.
See Chuck v Cremer (1) (1 Coop temp. Cott 342.
In Matiangi Cabinet Secretary Ministry of Interior and Coordination of National Government v Miguna & 4 others, the Court of Appeal expressed itself as follows;
“In deserving cases, this court has itself set its face firmly against granting contemnors audience until and unless they first purge their contempt and it shall continue to do so in such cases as envirice a headstrong contumaciousness proceeding from a bold impunity, open defiance or cynical disregard for the authority of the court and the integrity of the judicial system.
Such pernicious conduct cannot be countenanced and those hell-bent on it will find neither help nor refuge under a convenient and self-serving appeal to natural justice when their impudent conduct threaten the very foundation of the rule of law…”
See also Hadkison v Hadkinson (1952) ALLER 567 Refrigeration and Kitchen Utensils Ltd v Gulabchand Popatlal Shali & another Civil Application No. 39 of 1990 Mate and another v Wambora & another (2014) KECA 376 (KLR) Justus Kariuki Mate & Jim G Kauma v Martin Nyaga Wambora & Jim G (2014) KECA 590 (KLR).
In determining whether the Respondent’s Ag. Managing Director disobeyed court orders, the court is required to satisfy itself that the elements of contempt have been established to required standard.
The sentiments of Mativo J (as he then was) in Samuel M. N. Mweru & others v National Land Commission (2020) KEHC 9233 (KLR) are instructive;
“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. Upon proof of these requirements, the presence of wilfulness and bad faith on the part of the Respondent would normally be interred but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand at ip 36.publications.lawcom.govt.nz who succinctly stated:
“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:
(a) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendants;
(b) The defendant had knowledge or proper notice of the terms of the order;
(c) The defendant has acted in breach of the terms of the order; and
(d) The defendant’s conduct was deliberate.”
From the foregoing, it is decipherable that the standard of proof on civil contempt is higher than in civil cases. This is because civil contempt is quasi criminal and if convicted, the contemnor may lose the constitutional right of personal liberty or be fined or both.
In Mutitika v Baharini Farm Ltd (1985) KECA 60 (KLR) the Court of Appeal held:
“We agree with Mr. Khaminwa’s was submissions in this respect. In our view, the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. We envisage no difficulty in courts determining the suggested standard of proof…”
In the instant case, the court granted prayer No. 2 and 3 of the Applicant’s Notice of Motion dated 11th May 2026 thus;
2 Pending the inter partes hearing of the Application, this Honourable court be pleased to issue a status quo Order in relation to the Petitioner’s position as the General Manager (Infrastructure Development) and his Directorate, suspending the taking effect off any restructure and/or reorganization of his role/position.
3. Pending the hearing and determination of the Application this Honourable Court be pleased to issue a Conservatory Order suspending the taking into effect any restructure and or reorganization whose effect would be to alter negatively and lessen the petitioner’s position as the General Manager (Infrastructure Development) and his Directorate and the attendant benefits.
The Respondent’s Ag Managing Director is accused of having reassigned roles in various projects to the General Manager (Operation & Engineering Services) and handover among others.
Order No.2 meant that the state of affairs of the Applicant’s position and Department would remain as if were on 20th May 2026.
The orders restrained the Respondent from doing anything whose effect would be to reorganization the Applicant’s Department or the stature of his position as General Manager (Infrastructure Development). The Respondent admits that by 20th May 2026, certain decisions had already been made and communication was effected after the orders were served.
In Shimmers Plaza Ltd v National Bank Ltd (Supra) the Court of Appeal held;
“Status quo” in normal english parlance means the present situation, the way things stand as at the time the order is made, the existing state of things. It cannot therefore relate to the past or future occurrences or events.”
Clearly, the order means that everything stops as at that point until the orders is lifted or discharged.
The court notes that, none of the parties sought any clarification from the court on the scope or effect of the order and it is fair to summise that the parties knew the meaning and import of the orders.
For the foregoing reasons the court is satisfied that the terms of the order were clear and unambiguous and binding on the alleged contemnor.
Second, although none of the parties adverted to the actual time of service of the court order on 20th May 2026, in their averments, it is discernible that the alleged contemnor had knowledge of the terms of the order.
Thirdly, although the court is persuaded that forwarding letters written and signed earlier would not per se constitute contempt of court, it is notable that the forwarding of the letters occurred after service of the court order and related to a responsibility that was being reassigned from the petitioner/Applicant.
The Petitioner/Applicant’s contention that the letters were backdated lacked verifiable evidence in support.
According to the Ag. Managing Director of the Respondent the internal memorandum to the petitioner was issued prior to the service of the court order and the petitioner sought clarification vide memorandum acted 22nd May 2026 which made reference to a memo dated 12th May 2026 on the handing over of projects to user Departments. The Petitioner/Applicant had no obligation to reply to the memo by dint of the court order.
Contrary to the alleged contemnor’s averment that the court order related to the petitioner’s designation and rank as per the Respondents organization from, as well as terms and conditions of employment and remuneration, it was much order in scope. It incorporated the Department he was serving in and would have included the reassignment of roles, had it been effected after service of the court order.
However, knowledge of the court order suffices see Basil Criticos v Attorney General & 8 others (2012) eKLR.
In a nutshell, the alleged contemnor breached the terms of the order by sending letters after having received the court order before seeking his counsels advise on the scope of the court order, which is some way may have worked out in his favour.
As to whether the alleged contemnor’s conduct was deliberate the Ag Managing Director swore that he acted in good faith and denied that his conduct demonstrated disdain, disregard or contempt towards the dignity and authority of the court.
It is trite law that for conduct to amount to contempt of court it must have been intentional, wilful and deliberate. The contemnor must have intended to breach the court order.
In Samuel M. N Mweru & other v Naitonal Land Commission (Supra) Mativo J (as he then was) held;
“Third accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt. It is further relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestions of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment.”
See also Uboro Housing Co-operative Society Ltd v Tripple Two Properties Ltd & 7 others (2023) KECA 675 (KLR), County Government of Kilifi v Ngala (As Administrators of the Estate of Tsangwa Ngala Chome) & 5 others (2025) KECA 933 (KLR).
For the foregoing, reasons, it is the finding of the court that the Petitioner/Applicant has failed to establish that the alleged contemnor intentionally and wilfully or deliberately disobeyed court orders.
In the upshot, the Petitioner/Applicant’s Notice of Motion dated 11th May, 2026 is dismissed with no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 7TH JULY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI – PET E154 OF 20262 OF 14 |