REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
PETITION NO. E093 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
MARTIN LUTHER BWANGA..…………………………...…. PETITIONER
-VERSUS-
ANTI-COUNTERFEIT AUTHORITY………………………..RESPONDENT
RULING
Before the court for determinations is the Petitioner/Applicant’s Notice of Motion dated 1st April 2026, seeking orders that:-
1. This Honourable Court does hold Dr. Robi Mbugua Njoroge, Dr. John Akoten Yussuf Osman, Nelly Chepngetich, Henry Omusindi, Maina Linolsay Kipkemoi, Agnes Karingu, Mugeni Mongera and Mary Mwinga (herein after contemnors) in contempt of the orders of status quo of this court issued on 24th March 2026, in the presence of all parties and sentences them appropriately.
2. Costs of the application be provided for.
The Notice of Motion is expressed under section 5 of the Judicature Act Parts 2 and 3 and Section 81 of the English Civil Procedure Rules 1998, the English Contempt of Court Act 1981 and Rules 45(1) and (2) and 47 of the Employment and Labour Relations Court (Procedure) Rules 2024, and based on the grounds outlined on its face and the Supporting Affidavit of the Applicant sworn on an undisclosed dated.
The Petitioner/Applicant’s case is that although the court issues orders that the status quo be maintained on 24th March 2026, in the presence of counsel for both parties and the order was subsequently extracted, that the Petitioner received a call from one Mary Mwinga, Secretary to the Respondent’s Human Resource Management Advisory Committee to attend a disciplinary hearing and the members of the committee had assembled in the boardroom awaiting his appearance for hearing to continue.
That he was unwell and at the Aga Kha Hospital and informed Mary Mwinga who advised him to call the Chairman of the committee Dr. John Akoten who informed the petitioner that the committee would proceed with its deliberations and make a decision.
That the petitioner notified his counsel and wrote a protest email to Mary Mwinga and Dr. John Akoten but none responded.
That the contemnors are in contempt of court by convening and holding a meeting to undertake a disciplinary hearing on 31st March 2026, calling the petitioner to attend the meeting, summoning the petitioner to attend the disciplinary meeting on 31st March 2026 among others.
That all contemnors were part of the respondent and the status quo order applied to all with equal force with Dr. Robi Mbugua Njoroge as the appointing authority of the committee.
That the contemnors were taken as having been aware of the orders since they were issued in the presence of both counsels and disobeyed the orders by meeting and deliberating on the issues at hand.
That Dr Robi Mbugua had a personal hatred and malice for the petitioner, a fact known at the respondent’s place of employment and the committee was not impartial.
Respondent’s Case
In opposition to the petitioner’s Notice of Motion Dr. John Akoten, the Chairperson of the Human Resource Disciplinary hearing committee swore a Replying Affidavit on 9th April 2026.
The affiant deponed that the committee received communication via email that the court had halted the disciplinary case against the petitioner by dint of the status quo order and it suspended all further disciplinary proceedings and acted in good faith. That the petitioner informed the committee that he was unwell on 31st March 2026 and responded that hearing would not take place owing to the court’s directions and no proceedings took place.
By a Supplementary Affidavit sworn on 20th April 2026 the petitioner deponed that the Respondent’s Replying Affidavit had not controverted instances or acts of contempt of inviting him for a meeting and only dispersed after the communication was in writing and had not explained the call on 31st March 2026.
That the contemnors had an intention to disobey court orders but changed their mind after the protest by the petitioner.
According to the applicant, the court order was disobeyed.
The court has considered the submissions on records.
For contextual purposes, the Petitioner/Applicant filed the instant petition on 18th March 2026 together with a Notice of Motion of even date under certificate of urgency seeking various interim orders and when the matter came up on 19th March 2026 the court directed service, response by respondent and inter partes hearing on 24th March 2026 on which dated Kaiboro for the Respondent informed the court that she intended to file a Notice of Preliminary Objection by close of business and suggested that the status quo be maintained and Mr. Omondi for the petitioner was agreeable.
Further directions on responses by the respondent and reply by the applicant were issued as was the ruling date on the preliminary objection on 23rd April 2026. The order for maintenance of the status quo was extended. This is the order the subject matter of the instant application.
The singular issue for determination is whether the individuals named by the applicant in his Notice of Motion dated 1st April 2026 are guilty of contempt of court and thus liable to punishment.
The applicant’s case is that the nine (9) individuals named in the motion breached the court order for maintenance of the status quo issued on 24th March 2026 by congregating and meeting on 31st March 2026 and summoning the applicant to attend the disciplinary hearing and threatening to proceed if he did not attend.
That Dr. Robi Mbugua Njoroge appointed the committee the nine (9) individuals identified as contemnors contended that they were aware of the court order and halted the disciplinary process. They denied the applicant’s allegations.
The law governing contempt for court in Kenya is prescribed by section 5 of the Judicature Act as captured by the Court of Appeal in Shimmers Plaza Ltd v National Bank of Kenya Ltd (2025) KECA 945 (KLR) as follows:
“This provision subjects the proceedings of contempt of court in Kenya to the current law governing the High Court of Justice in England… The prevailing Law of Contempt in England is now found in the Contempt of Court Act of 81 and Part 91 of the Procedure in the Civil Procedure (Amendment No.2) Rules, 2012 that 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 many important decisions. In the recent Wambora’s case (Supra) the court had the opportunity to interpret and apply section 5 of the Judicature Act and made the following observations…”
See also in this regard Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 others Civil Application No. 233 of 2007.
It is trite law that court orders must be obeyed by all persons against whom the orders relate, whether the person(s) believe it is illegal or irregular.
See Hadkinson v Hadkinson (1952) ALLER 567.
Persons who disobey court orders, while ware of their existence ought to be punished to underline the authority and dignity of courts as held in Refrigeration and Kitchen Utensils Ltd Gulabchand Popatlal Shah & another Civil Application No. 39 of 1990.
In Shimmers Plaza Ltd v National Bank of Kenya Ltd (Supra) the Court of Appeal stated.
“If cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law good order and the due administration of justice…
We reiterate here that court orders must obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of court orders is not optional rather it is mandatory and a person does not choose whether to obey a court order or not. For as Theodure Roosevelt, the 26th President of the United States of America once said:-
“No man is above the law and no man is below it; nor do we ask any man’s permission to obey it. Obedience to the law is demanded as a right; not as a favour…”
The dignity, and authority of the court must be protected and that is why those who flagrantly disobey them must be punished less they lead us all to a state of anarchy…”
See also Teachers Service Commission v Kenya National Union of Teachers & 2 others (2013) eKLR.
The elements of contempt of court have been rehashed in many decisions.
In Kenya Re-insurance Corporation Ltd v. Eunice Mbogo (2019) KECA 612 KLR the court stated:
“Essentially to prove that a person has committed contempt of court it must be demonstrated that;
(a) The terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;
(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.”
See Cecil Miller v Jackson Njeru (2017) eKLR.
In Justus Kariuki Mate & another v Hon. Martin Nyaga Wambora & another Civil Appeal No. 24 of 2014 (Wambora Case) the Court of Appeal held inter alia;
“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 exercise of original criminal jurisdiction of the High Court” (Emphasis added)
On the standard of proof, in Kenya Reinsurance Corporation Ltd v Eunice Mbogo (Supra) the court held:
“It is essential for that reason that the breach for which the alleged contemnor is cited be precisely defined. It must be proved to a standard higher than “on a balance of probabilities, almost but not exactly beyond reasonable doubt.”
In Mutitika v Baharini Farm Ltd (1985) KECA 60 (KLR) the Court of Appeal enunciated the standard of proof in contempt of court in the following terms:
“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 difficult in courts determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs to wit in criminal cases. It is not safe to extend it to offence which can be said to be quasi-criminal in nature…”
Applying the foregoing elements to the facts of the instant case it is evident that the terms of the order issued on 24th March 2026 on the maintenance of the status quo were clear, unambiguous and binding of the respondent. The respondent has not pleaded ambiguity of the order or want of clarity.
Secondly, the respondent had knowledge of the terms of the order on account that the orders were made in court and in the presence of both counsels. Equally, counsels were in agreement that the status quo maintained.
Significantly, Dr. John Akoten confirmed that the Human Resource Disciplinary Hearing Committee was informed of the order on the same day via email and resolved to suspend all further disciplinary proceedings.
As to whether the individuals identified by the applicant acted in breach of the terms of the order, parties have adopted contrasting positions.
While the applicant deponed that he was told that the meeting was to proceed to deliberate his case and wrote to one Mary Mwinga protesting the applicant’s email dated 31st March 2026 at 10.19 explaining as to why he would not attend the meeting and asking for its adjournment. A protest followed.
According to applicant, Dr. Robi Mbugua Njoroge appointed the committee and the others called him, summoned him and congregated to undertake the disciplinary hearing.
Dr. John Akoten on the other had deponed that the proceedings were suspended effective 24th March, 2016.
From the email communication, it appears as if the respondents Human Resource Management Advisory committee (HRMAC) had intended to proceed with the disciplinary hearing but backdown owing to the applicants protests and unavailability.
Equally, the applicant tendered no evidence to prove that the members had assembled at the venue or proceeded with the meeting.
It is trite that an intention to do a particular act is not tantamount to doing it as the former is a state of mind which ought to be manifested by conduct.
Finally, the applicant adduced no evidence to demonstrate that the HRMAC was appointed by Dr. Robi Mbugua Njoroge.
It is trite that the HRMAC is a creation of the Human Resource Polices and Procedures Manual and is thus a Standing Committee not adhoc as the applicant appears to be suggesting.
Without credible evidence that the committee deliberated his case, the applicant has failed to prove that the nine (9) individuals or any of them acted in breach of the court orders.
Having failed to prove this requirement, the question as to whether the individuals acted deliberately or not does not arise.
From the foregoing, it is discernible that the applicant has failed to discharge the burden of proof that the nine (9) in individuals he named in his Notice of Motion are guilty of contempt of court. They did not alter or vary the status quo.
The upshot of the above finding is that the applicants Notice of Motion dated 1st April 2026 is devoid of merit and it is accordingly dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH JUNE, 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 – PETITION E093 OF 20262 |