Introduction
1. In the Notice of Motion Application dated 5 th June 2024, the Applicants/Petitioners seek to cite the Applicants Bernard Mbogo (Ag. CEO Lapfund) and Johnson P. Osoi (Chairman Lapfund) for contempt of the orders and judgment of this court dated 19 th January 2024 and order that the said contemnors be committed to jail for six months.
The Petitioners’/Applicants’ Case
2. The Petitioner deposed that by judgement of this Court delivered on 19 th January 2024, the petitioners were reinstated as members of the board of the Local Authority Provident Fund. However, the contemnors by their actions or inactions have been in contempt of the judgment and orders of the instant court and have mischievously frustrated them from resuming their duties as board members.
3. The petitioners reveal that the 2 nd contemnor is on record telling them that he will see to it that their term lapse without them participating in board activities. Further, the contemnors have intentionally refused to call a full board meeting. They have conspicuously been running the affairs of the Lapfund without their participation as directed by the court. The petitioners disclose that the contemnors only engaged them when they attempted to set aside stay orders for recruitment of Chief Officer of the Lapfund issued by Honourable Lady Justice M. Onyango at the Employment and Labour Relations Court at Eldoret in Judicial Review Application Number E002 of 2024 through a consent exercise which they were not aware of and protested to the same.
4. The contemnors nevertheless proceeded with the recruitment exercise of the Lapfund CEO without the board’s approval despite protests from the board members. They have further performed a reorganization; staff restructuring and increase of salary without involving the board which has the effect of increasing expenses in terms of emoluments on behalf of the Lapfund Board without the board’s approval which is unprocedural.
5. The petitioners further aver that the budgeting of the board for the year 2024-2025 has equally not been done yet the financial year for the year 2023-2024 will come to an end on 30 th June 2024 putting in jeopardy the activities of the Lapfund and the management of the billions of shillings of the pensioners funds. Furthermore, the acts and omission of the contemnors
in the running of the affairs of the Lapfund is contemptuous and they require the intervention of the instant court.
6. The applicants filed a Further affidavit dated 15 th July 2024 and state that the contemnors admitted contempt of the orders of this honourable court. Further, the contemnors being appointees of the 1 st respondent were bound by the orders of the instant court.
7. The applicants aver that the 2 nd contemnor has deliberately disobeyed the orders of the court in an attempt to convene a board meeting. Additionally, the Mwongozo code alluded by the contemnors provides a framework embodying board charter, code of conduct, professional ethics and performance management. The mwongozo code takes consideration of chapter six of the Constitution on leadership and integrity as well as the Public Officers and Ethics Act 2003 which clearly by the conduct of the contemnors they have fallen short of the same.
The Contemnors’ Case
8. The contemnors have submitted that they filed a Replying Affidavit dated 14 th June 2024. However, there is no copy of such affidavit in the court file or the CTS.
9. The only affidavit in both the court file and the CTS is the Further Affidavit dated 17 th November 2024 sworn by the 2 nd contemnor. He avers that the 1 st – 4 th applicants have resigned. The 1 st petitioner resigned on 18 th July 2024 vide letter addressed to the Cabinet secretary National treasury and
Economic Planning whereby he indicated he was incredibly grateful for the opportunity to serve as a director in Lapfund from 4 th June 2022 to date. Pursuant to the wording of the letter dated 18 th July 2024, by the 1 st applicant who swore the affidavit in support of the instant application, there is no way there could have been contempt of court orders by the contemnors. Further
he confirmed to the court that he was at all material times serving as a director who is sufficiently grateful and content with the working environment as board member and hence there is no way contempt of court would have occurred.
10. The contemnors aver that the 2 nd and 3 rd applicants’ contract term lapsed on 24 th October 2024 . Further the 4 th applicant resigned on 18 th July 2024 with effect from 1 st august 2024 where he indicated that he was grateful to serve in the capacity of a board member and to contribute to the strategic direction and governance of the organization. The wording of the said letter demonstrates cordial, effective and positive results-oriented working environment which demonstrates that there was no contempt of court. Further, the 3 rd applicant defines working with the organization led by them as being significant and fulfilling experience that contributed to his growth and success while working alongside a dedicated and talented group of professionals including the CEO and the chairman. Thus, based on the contents of the 3 rd applicant’s letter it demonstrates how they professionally performed their functions to facilitate the applicants work as board members of Lapfund.
11. The contemnors aver that the 5 th applicant’s impugned allegations cannot stand unsupported by a proper affidavit and in any event, his term has since
lapsed. Furthermore, the Cabinet Secretary National treasury and Economic Planning has already appointed new board members. Thus, the instant application has been overtaken by events as the applicants are no longer board members of Lapfund.
12. The applicants filed a Supplementary Affidavit dated 13 th May 2025 and state that their resignation does not absolve the contemnors from being contemptuous. The judgment was delivered on 19 th January 2024 which the respondents failed to comply with. The applicants further aver that the contemnors have been aware of the said judgment however despite being aware of the said judgment, they did not reinstate them but have frustrated their resumption to office. Further, they aver that their resignation was not voluntary but was occasioned by the sustained frustration and hostility on the contemnors who deliberately refused to reinstate them to their positions as members of the board. Additionally, they were constructively forced out of office despite clear and unequivocal orders issued by the court vide the judgment dated 19 th January 2024.
13. The applicants argue that court orders are meant to be obeyed promptly and faithfully and despite judgment been delivered on 19 th January 2024, the contemnors failed, ignored and refused to reinstate them until 18 th July 2024 when they resigned due to the prolonged failure by the contemnors to comply with the orders of the court. Further, the period between the date of
judgment on 19 th January 2024 and their resignation on 18 th July 2024 is a duration of seven months and that the extended period of inaction and deliberate disobedience by the contemnors clearly establishes contempt of court. The applicants add that the contemnors conduct amounts to blatant
and sustained disregard of the authority of this Honourable Court and should be held in contempt accordingly.
14. The applicants aver that their expression of gratitude is indicative for the time they served as members of the board. Further, expression of gratitude is professional decorum and does not endorse the respondents’ actions. They
further reiterate that the 2 nd contemnor is on record telling them that he will see to it that their term lapses without them participating in the activities of the board. That was said despite the existence of court orders which at the time was within the contemnor’s knowledge.
15. Parties put in written submissions.
The Petitioners’ Submissions
16. The petitioners submitted that the contemnors alleged that since they were not parties to the proceedings culminating to the judgment delivered on 19/1/2024 and the consequential orders issued cannot bind them and hence the contempt of court proceedings cannot stand against them. However, the contemnors in their own admission averred that they are agents or servants of the 1 st and 2 nd respondents and that they take directions from them. Thus, the contemnors were bound by the orders of this court and they have deliberately disobeyed the orders of this court and in particular they have interfered with their working for the remainder of their term contrary to the orders of the court. The same is shown by the 2 nd contemnor’s letter dated 24 th January addressed to the 1 st respondent which confirms that the
contemnors have never come to terms with the decision of the court hence their defiance to date.
17. The petitioners cited the case of Christine Wangari Gahege vs Elizabeth Wanjiru Evans & 11 Others [2014] eKLR in which the Court of Appeal held as follows:-
a. Part 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedures for four different forms of violations.
b. Rules 81.4 relates to committed for breach of a judgment, order or undertaking to do or abstain from doing an act.
c. Rules 81.11 committal for interference with the due administration of justice (applicable only in criminal proceedings).
d. Rules 81.6 committal for contempt in the face of the court and
e. Rules 81.17 committal for making false statement of truth or disclosure statement.
18. The applicants submitted that an application under Rule 81.4 now referred to as application notice is the relevant one for the current application. It is made in the proceedings in which the judgment or order was made or the undertaking given. The applicants further submitted that the court is clothed with the mandate to uphold the rule of law and inherent power to safeguard itself against contemptuous or disruptive intrusion by punishing contempt. Reliance was placed in the case of Akber Abdullah Kassam Esmail vs equip agencies Ltd & 4 Others [2014] eKLR in which the Court of
Appeal cited with authority the Supreme Court Case of The Board of Governors Moi High School, Kabarak vs Malcolm Bell & Another SC Petition No. 6 & 7 of 2013 which described the power to punish for contempt as:-
A power of the court to safeguard itself against contemptuous or disruptive intrusion from elsewhere and identified it as one of the indisputable attributes of the court’s inherent power. Without that power, protection of citizens’ rights and freedoms would be virtually impossible. Courts of law would be reduced to futile institutions spewing forth orders in vain.
19. Further reliance was placed in Samuel M. N. Mweru & Others vs National Land Commission & 2 others [2020] eKLR where the court held:-
A court without contempt power is not a court. The contempt power (both in its civil and criminal form) is so innate in the concept of jurisdictional authority that a court that could not secure compliance with its own judgments and orders is a contradiction of terms, an oxymoron. Contempt power is something regarded as intrinsic to the notion of the court; even obvious, I would say. In the common lawyer’s eye, the power of contempt is inherent in courts and automatically exists by its very nature.
20. Similarly in Republic vs County Chief Officer, Finance & Economic Planning, Nairobi city County ex parte Stanley Muturi [2018] eKLR :-
Court orders are not meant for cosmetic purpose. They are serious decisions that are meant to be and ought to be complied with strictly. As was held in Teachers Service Commission vs Kenya National Union of Teachers & 2 Others Petition No. 23 of 2013:-
The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is about placating the applicant who moves the court by taking out contempt of court proceedings. It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues challenging it are also set out in the law. Defiance is not an option.
21. Additional reliance was placed on Republic vs County Government of Kitui ex parte Fairplain Systems Limited (2022) eKLR where it was held:-
It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in application to the court by him not being entertained until he had purged his contempt.
22. The applicants submitted that the acts of deliberately running the affairs of the board without them as admitted by the contemnors in the letter dated 30 th January 2024 is confirmation that the contemnors have little regard to the authority of this honourable court.
The 1 st and 2 nd Contemnors Submissions
23. The contemnors submitted that the court orders issued via judgment dated 19 th January 2024 are not binding to them as they were not parties to the suit neither were the court orders directly issued to them in their personal capacity or their capacities as Acting CEO and Chair of Lapfund therefore the applicants have failed to prove that they are guilty of contempt of court. Reliance was placed in the case of Samuel M. N. Waweru & Others vs National land Commission & 2 Others [2020] eKLR where the court held as follows:-
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 defendant;
b. The defendant had knowledge of or proper notice of the terms of thereunder;
c. The defendant has acted in breach of the terms of the order; and
d. The defendant’s conduct was deliberate.
24. The court further held that a court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with.
25. Further reliance was placed in Republic vs County Government of Kitui ex parte Fair Plain Systems Limited (2022) eKLR where the court cited the case of Hadkinson vs Hadkinson (1952) 2 ALL ER 56 and held that:-
It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in application to the court by him not being entertained until he had purged his contempt.
26. The contemnors argued that the court orders issued on 19 th January 2024 were expressly addressed to the 1 st and 2 nd respondents. Furthermore, the contemnors submitted that they have not in any way interfered with or replaced the petitioners as board members of Lapfund and neither have the applicants shown how they have done so. They additionally submitted that the 2 nd contemnor is not an employee/servant/agent/appointee of either the 1 st or 2 nd respondents as he is directly an appointee of the president of the Republic of Kenya but only liaises with the 1 st respondent for the purposes of running the State Corporation pursuant to the State Corporations Act. Under Section 5(8) of the Local Authorities Provident Fund, the board that the petitioners belonged to is a body corporate having perpetual succession and may in its corporate name sue and be sued hence the board is distinct and separate from the respondents. Further, the 2 nd contemnor and the chairperson do not amount to the board and therefore cannot be purported to make any decisions including any contemptuous act on behalf of the board. Additionally, the 1 st contemnor is neither a board member nor can he make any decision, an act or omission about board decisions in the absence of a properly constituted board and is merely empowered by mwongozo and
Lapfund Act with the mandate of implementing board decisions. Further, the 1 st contemnor is merely an appointee/employee/servant/agent of the board and not the respondents.
27. The contemnors asserted that they have not deliberately disobeyed any court orders issued by the current court. Reliance was placed in the case of Sheila Cassatt Issenberg & Another vs Antony Machatha Kinyanjui [2021] eKLR where the court held that:-
For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at him….The Cromwell J, writing for the Supreme of Canada in Carey vs Laiken 2015 SCC 17 (16 th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:-
The order alleged to have been breached must state clearly and unequivocally what should and should not be done. This ensures that a party will not be found in contempt where an order in unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning…
28. From the reading of the law especially Mwongozo and the Lapfund Act, the contemnors argued that they do not have a role in either selection, replacing or assigning duties to the board and thus they cannot be said that they have hindered the resumption of office by the applicants. They have been carrying out their legal duties as CEO and Chairperson of Lapfund without any hindrance of the applicants to access their offices. Further Schedule 1.4 of the Code of Governance for State Officials (Mwongozo) as read with the Local authorities Provident Fund Act stipulates that the 2 nd contemnor is only required to set an agenda for the meeting and call for such a meeting where there is a substantive agenda. Further, the court did not expressly order the
2 nd contemnor to hold meetings as such he cannot be held in contempt for not holding a full board meeting. Additionally, Schedule 1.19 does not mandate the 1 st contemnor to call for full board meetings and as such he should not be held in contempt for an act or omission that is not expressly his role and orders issued by the court did not direct anything to the contrary.
29. The contemnors submitted that they did not have power to reinstate the applicants to the board and they sought for direction from the 1 st respondent and have so far not received any. Further, the 2 nd contemnor wrote a letter dated 29 th January 2024 to the 1st respondent on the revised annual budget for 2023/2024 advising him that the court had revoked the appointment of the new board members and as such Lapfund could not hold a board meeting to discuss and approve the revised budget until a new board is constituted. Additionally, the 1 st contemnor prepared the 2024/2025 budget and in the absence of a proper board it was forwarded to the appointing authority, the 1 st respondent who disburses funds in the entire country for approval and to which does not in any way demonstrate disobedience of court orders issued on 19 th January 2024.
30. Whilst relying on the case of Oilfields Movers Ltd vs Zahara Oil & Gas Limited [2020] eKLR , the contemnors argued that the standard of proof in contempt proceedings is quite high and requires the applicants to prove beyond any shadow of a doubt. The court held that:-
It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty.
31. The mere allegations that court orders were issued against them and that they are in contempt of those orders is an afterthought that amounts to an abuse of the court process.
32. Further reliance was placed in the case of MNN vs JMM [2022] eKLR which held as follows on the burden of proof for contempt of court:-
A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily….it must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi criminal in nature.
33. Further reliance was placed on Samuel M. N. Mweru & Others vs National Land Board Commission & 2 Others (supra) where the court held as follows:-
The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough since the non complier may genuinely, albeit mistakenly believe that he or she is entitled to act in a way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bone fide (though unreasonableness could evidence lack of good faith). These requirements that is the refusal to obey should be both wilful and mala fides and that unreasonable non compliance provided it is bona fide does not constitute contempt- accord with the broader definition of the crime, of which non compliance with civil orders is a manifestation. They show that the offence is committed not by the mere disregard of a court order but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. The honest belief that non compliance is justified or proper is incompatible with that intent.
34. The contemnors argued that citing a party for contempt of court has grave repercussions which include imprisonment and seizure of their personal property, thus the court should first satisfy itself that indeed issued orders to a party and that party has deliberately violated such orders. Reliance was placed in the case of Katsuri Ltd vs Kapurchand Depar Shali [2016] eKLR where the court held:-
The courts take the view that where the liberty of the subject is or might be involved, the breach for which he alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved…..it must be higher than proof on a balance of probability, almost but not exactly, beyond reasonable doubt.
35. Further reliance was placed in Sheila Cassatt Issenberg & Another vs Antony Machatha Kinyanjui (supra) where the court held as follows:-
But even as courts punish for contempt to safeguard the peace and development of society and the rule of law, it must be borne in mind that the power to punish for contempt is a discretionary one and should be used sparingly. That is why the court observed in Carey vs Laiken that if courts were to find contempt too easily a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and the authority of the very judicial power it seeks to protect. The court’s contempt power should be used cautiously and with great restraint. It is an enforcement power of last resort rather than first resort.
36. Corresponding reliance was placed on the case of Gatharia K. Mutikika vs Baharini Farm Ltd [1985] KLR 227 where the court held:-
A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily….it must be higher than
proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi criminal in nature.
However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge…Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject….applying the test that the standard of proof should be consistent with the gravity of the alleged contempt…..it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration whether the offender is a party to the proceedings or not.
In light of the gravity of the personal consequences that would ordinarily flow from a finding of contempt, the law requires proof that the order in question was brought to the attention of the alleged contemnor as proof that he/she had personal knowledge of the said order.
37. In light of that, the contemnors argued that the applicants having failed to prove all the elements required to make a case for contempt against them, they should not be punished for contempt of court.
38. The petitioners filed submissions dated 15 th February 2026 in light of the appeal in the Court of Appeal being Civil Appeal No. E143 of 2024 and the judgment delivered on 9 th May 2025. The Court of Appeal outlines the issues for determination as follows:-
• whether the trial court had jurisdiction to hear and determine the amended petition;
• whether the trial court erred in finding that the petitioners established violation of their rights under Article 47 of the Constitution and of their legitimate expectation to serve on the board for the full term of three years, and
• whether the trial court erred in finding that the 1 st appellant acted in violation of the Constitution in revoking the appointment of the 1 st to 5 th respondents and appointing the 6 th to 12 th respondents to the Board.
39. The appellate court was satisfied that the trial court properly found that the 1 st respondent exercised power arbitrarily in revoking the appointment of the 1 st to 5 th petitioners from the Board and that the manner of their removal was not in accord with the provisions of Articles 47 and 236 of the Constitution. On the third issue, the appellate court found that the only legitimate expectation that the petitioners could have had which was grounded on law and the Constitution is that their removal from the board should it occur before the expiry of their terms, would be done in accordance with the provisions of Article 47 and 236 of the Constitution as well as Fair Administrative Action.
40. The court further held that given the manner they were appointed, they did not have a legitimate expectation to remain on the board for the term indicated on their letters of appointment.
41. Thus, the petitioners argued that the appellate court did not quash or set aside the orders issued on 19 th January 2024 restraining the respondents from interfering or replacing them as board members of the Lapfund for the remainder of their term.
42. Thus, the orders issued by the present court remain valid and binding. Further, there was no stay of execution on the said orders and thus the said orders were fully operational and valid and the respondents were under a legal obligation to comply with the court orders. The respondents cannot retroactively rely on a later appellate judgment to justify prior disobedience of valid court orders.
43. The contemnors equally filed further submissions dated 27 th July 2025 in light of the judgment of the appellate court delivered on 9 th May 2025. The contemnors reiterated that they are not employees or agents of the 1 st respondent but they are appointees of the Lapfund which is a separate legal entity under the Lapfund Act. They further argued that the petitioners failed to provide any proof that they acted under the specific command of the National Treasury and their letter dated 29 th January 2024 shows consultation with and not subordination to the National Treasury. Further they stressed that the Court of Appeal’s judgment did not alert the fundamental fact that they were not parties to the original suit and were not personally bound by the High Court’s orders.
44. The contemnors submitted that the Court of Appeal rejected the argument that the petitioners had a legitimate expectation to serve their full term meaning their claim of frustration lacks legal basis. Thu
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1. In the Notice of Motion Application dated 5 th June 2024, the Applicants/Petitioners seek to cite the Applicants Bernard Mbogo (Ag. CEO Lapfund) and Johnson P. Osoi (Chairman Lapfund) for contempt of the orders and judgment of this court dated 19 th January 2024 and order that the said contemnors be committed to jail for six months.
The Petitioners’/Applicants’ Case
2. The Petitioner deposed that by judgement of this Court delivered on 19 th January 2024, the petitioners were reinstated as members of the board of the Local Authority Provident Fund. However, the contemnors by their actions or inactions have been in contempt of the judgment and orders of the instant court and have mischievously frustrated them from resuming their duties as board members.
3. The petitioners reveal that the 2 nd contemnor is on record telling them that he will see to it that their term lapse without them participating in board activities. Further, the contemnors have intentionally refused to call a full board meeting. They have conspicuously been running the affairs of the Lapfund without their participation as directed by the court. The petitioners disclose that the contemnors only engaged them when they attempted to set aside stay orders for recruitment of Chief Officer of the Lapfund issued by Honourable Lady Justice M. Onyango at the Employment and Labour Relations Court at Eldoret in Judicial Review Application Number E002 of 2024 through a consent exercise which they were not aware of and protested to the same.
4. The contemnors nevertheless proceeded with the recruitment exercise of the Lapfund CEO without the board’s approval despite protests from the board members. They have further performed a reorganization; staff restructuring and increase of salary without involving the board which has the effect of increasing expenses in terms of emoluments on behalf of the Lapfund Board without the board’s approval which is unprocedural.
5. The petitioners further aver that the budgeting of the board for the year 2024-2025 has equally not been done yet the financial year for the year 2023-2024 will come to an end on 30 th June 2024 putting in jeopardy the activities of the Lapfund and the management of the billions of shillings of the pensioners funds. Furthermore, the acts and omission of the contemnors
in the running of the affairs of the Lapfund is contemptuous and they require the intervention of the instant court.
6. The applicants filed a Further affidavit dated 15 th July 2024 and state that the contemnors admitted contempt of the orders of this honourable court. Further, the contemnors being appointees of the 1 st respondent were bound by the orders of the instant court.
7. The applicants aver that the 2 nd contemnor has deliberately disobeyed the orders of the court in an attempt to convene a board meeting. Additionally, the Mwongozo code alluded by the contemnors provides a framework embodying board charter, code of conduct, professional ethics and performance management. The mwongozo code takes consideration of chapter six of the Constitution on leadership and integrity as well as the Public Officers and Ethics Act 2003 which clearly by the conduct of the contemnors they have fallen short of the same.
The Contemnors’ Case
8. The contemnors have submitted that they filed a Replying Affidavit dated 14 th June 2024. However, there is no copy of such affidavit in the court file or the CTS.
9. The only affidavit in both the court file and the CTS is the Further Affidavit dated 17 th November 2024 sworn by the 2 nd contemnor. He avers that the 1 st – 4 th applicants have resigned. The 1 st petitioner resigned on 18 th July 2024 vide letter addressed to the Cabinet secretary National treasury and
Economic Planning whereby he indicated he was incredibly grateful for the opportunity to serve as a director in Lapfund from 4 th June 2022 to date. Pursuant to the wording of the letter dated 18 th July 2024, by the 1 st applicant who swore the affidavit in support of the instant application, there is no way there could have been contempt of court orders by the contemnors. Further
he confirmed to the court that he was at all material times serving as a director who is sufficiently grateful and content with the working environment as board member and hence there is no way contempt of court would have occurred.
10. The contemnors aver that the 2 nd and 3 rd applicants’ contract term lapsed on 24 th October 2024 . Further the 4 th applicant resigned on 18 th July 2024 with effect from 1 st august 2024 where he indicated that he was grateful to serve in the capacity of a board member and to contribute to the strategic direction and governance of the organization. The wording of the said letter demonstrates cordial, effective and positive results-oriented working environment which demonstrates that there was no contempt of court. Further, the 3 rd applicant defines working with the organization led by them as being significant and fulfilling experience that contributed to his growth and success while working alongside a dedicated and talented group of professionals including the CEO and the chairman. Thus, based on the contents of the 3 rd applicant’s letter it demonstrates how they professionally performed their functions to facilitate the applicants work as board members of Lapfund.
11. The contemnors aver that the 5 th applicant’s impugned allegations cannot stand unsupported by a proper affidavit and in any event, his term has since
lapsed. Furthermore, the Cabinet Secretary National treasury and Economic Planning has already appointed new board members. Thus, the instant application has been overtaken by events as the applicants are no longer board members of Lapfund.
12. The applicants filed a Supplementary Affidavit dated 13 th May 2025 and state that their resignation does not absolve the contemnors from being contemptuous. The judgment was delivered on 19 th January 2024 which the respondents failed to comply with. The applicants further aver that the contemnors have been aware of the said judgment however despite being aware of the said judgment, they did not reinstate them but have frustrated their resumption to office. Further, they aver that their resignation was not voluntary but was occasioned by the sustained frustration and hostility on the contemnors who deliberately refused to reinstate them to their positions as members of the board. Additionally, they were constructively forced out of office despite clear and unequivocal orders issued by the court vide the judgment dated 19 th January 2024.
13. The applicants argue that court orders are meant to be obeyed promptly and faithfully and despite judgment been delivered on 19 th January 2024, the contemnors failed, ignored and refused to reinstate them until 18 th July 2024 when they resigned due to the prolonged failure by the contemnors to comply with the orders of the court. Further, the period between the date of
judgment on 19 th January 2024 and their resignation on 18 th July 2024 is a duration of seven months and that the extended period of inaction and deliberate disobedience by the contemnors clearly establishes contempt of court. The applicants add that the contemnors conduct amounts to blatant
and sustained disregard of the authority of this Honourable Court and should be held in contempt accordingly.
14. The applicants aver that their expression of gratitude is indicative for the time they served as members of the board. Further, expression of gratitude is professional decorum and does not endorse the respondents’ actions. They
further reiterate that the 2 nd contemnor is on record telling them that he will see to it that their term lapses without them participating in the activities of the board. That was said despite the existence of court orders which at the time was within the contemnor’s knowledge.
15. Parties put in written submissions.
The Petitioners’ Submissions
16. The petitioners submitted that the contemnors alleged that since they were not parties to the proceedings culminating to the judgment delivered on 19/1/2024 and the consequential orders issued cannot bind them and hence the contempt of court proceedings cannot stand against them. However, the contemnors in their own admission averred that they are agents or servants of the 1 st and 2 nd respondents and that they take directions from them. Thus, the contemnors were bound by the orders of this court and they have deliberately disobeyed the orders of this court and in particular they have interfered with their working for the remainder of their term contrary to the orders of the court. The same is shown by the 2 nd contemnor’s letter dated 24 th January addressed to the 1 st respondent which confirms that the
contemnors have never come to terms with the decision of the court hence their defiance to date.
17. The petitioners cited the case of Christine Wangari Gahege vs Elizabeth Wanjiru Evans & 11 Others [2014] eKLR in which the Court of Appeal held as follows:-
a. Part 81 (Applications and Proceedings in Relation to Contempt of Court) provides different procedures for four different forms of violations.
b. Rules 81.4 relates to committed for breach of a judgment, order or undertaking to do or abstain from doing an act.
c. Rules 81.11 committal for interference with the due administration of justice (applicable only in criminal proceedings).
d. Rules 81.6 committal for contempt in the face of the court and
e. Rules 81.17 committal for making false statement of truth or disclosure statement.
18. The applicants submitted that an application under Rule 81.4 now referred to as application notice is the relevant one for the current application. It is made in the proceedings in which the judgment or order was made or the undertaking given. The applicants further submitted that the court is clothed with the mandate to uphold the rule of law and inherent power to safeguard itself against contemptuous or disruptive intrusion by punishing contempt. Reliance was placed in the case of Akber Abdullah Kassam Esmail vs equip agencies Ltd & 4 Others [2014] eKLR in which the Court of
Appeal cited with authority the Supreme Court Case of The Board of Governors Moi High School, Kabarak vs Malcolm Bell & Another SC Petition No. 6 & 7 of 2013 which described the power to punish for contempt as:-
A power of the court to safeguard itself against contemptuous or disruptive intrusion from elsewhere and identified it as one of the indisputable attributes of the court’s inherent power. Without that power, protection of citizens’ rights and freedoms would be virtually impossible. Courts of law would be reduced to futile institutions spewing forth orders in vain.
19. Further reliance was placed in Samuel M. N. Mweru & Others vs National Land Commission & 2 others [2020] eKLR where the court held:-
A court without contempt power is not a court. The contempt power (both in its civil and criminal form) is so innate in the concept of jurisdictional authority that a court that could not secure compliance with its own judgments and orders is a contradiction of terms, an oxymoron. Contempt power is something regarded as intrinsic to the notion of the court; even obvious, I would say. In the common lawyer’s eye, the power of contempt is inherent in courts and automatically exists by its very nature.
20. Similarly in Republic vs County Chief Officer, Finance & Economic Planning, Nairobi city County ex parte Stanley Muturi [2018] eKLR :-
Court orders are not meant for cosmetic purpose. They are serious decisions that are meant to be and ought to be complied with strictly. As was held in Teachers Service Commission vs Kenya National Union of Teachers & 2 Others Petition No. 23 of 2013:-
The reason why courts will punish for contempt of court is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is about placating the applicant who moves the court by taking out contempt of court proceedings. It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed. A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues challenging it are also set out in the law. Defiance is not an option.
21. Additional reliance was placed on Republic vs County Government of Kitui ex parte Fairplain Systems Limited (2022) eKLR where it was held:-
It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in application to the court by him not being entertained until he had purged his contempt.
22. The applicants submitted that the acts of deliberately running the affairs of the board without them as admitted by the contemnors in the letter dated 30 th January 2024 is confirmation that the contemnors have little regard to the authority of this honourable court.
The 1 st and 2 nd Contemnors Submissions
23. The contemnors submitted that the court orders issued via judgment dated 19 th January 2024 are not binding to them as they were not parties to the suit neither were the court orders directly issued to them in their personal capacity or their capacities as Acting CEO and Chair of Lapfund therefore the applicants have failed to prove that they are guilty of contempt of court. Reliance was placed in the case of Samuel M. N. Waweru & Others vs National land Commission & 2 Others [2020] eKLR where the court held as follows:-
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 defendant;
b. The defendant had knowledge of or proper notice of the terms of thereunder;
c. The defendant has acted in breach of the terms of the order; and
d. The defendant’s conduct was deliberate.
24. The court further held that a court order is binding on the party against whom it is addressed and until set aside remains valid and is to be complied with.
25. Further reliance was placed in Republic vs County Government of Kitui ex parte Fair Plain Systems Limited (2022) eKLR where the court cited the case of Hadkinson vs Hadkinson (1952) 2 ALL ER 56 and held that:-
It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment and in application to the court by him not being entertained until he had purged his contempt.
26. The contemnors argued that the court orders issued on 19 th January 2024 were expressly addressed to the 1 st and 2 nd respondents. Furthermore, the contemnors submitted that they have not in any way interfered with or replaced the petitioners as board members of Lapfund and neither have the applicants shown how they have done so. They additionally submitted that the 2 nd contemnor is not an employee/servant/agent/appointee of either the 1 st or 2 nd respondents as he is directly an appointee of the president of the Republic of Kenya but only liaises with the 1 st respondent for the purposes of running the State Corporation pursuant to the State Corporations Act. Under Section 5(8) of the Local Authorities Provident Fund, the board that the petitioners belonged to is a body corporate having perpetual succession and may in its corporate name sue and be sued hence the board is distinct and separate from the respondents. Further, the 2 nd contemnor and the chairperson do not amount to the board and therefore cannot be purported to make any decisions including any contemptuous act on behalf of the board. Additionally, the 1 st contemnor is neither a board member nor can he make any decision, an act or omission about board decisions in the absence of a properly constituted board and is merely empowered by mwongozo and
Lapfund Act with the mandate of implementing board decisions. Further, the 1 st contemnor is merely an appointee/employee/servant/agent of the board and not the respondents.
27. The contemnors asserted that they have not deliberately disobeyed any court orders issued by the current court. Reliance was placed in the case of Sheila Cassatt Issenberg & Another vs Antony Machatha Kinyanjui [2021] eKLR where the court held that:-
For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at him….The Cromwell J, writing for the Supreme of Canada in Carey vs Laiken 2015 SCC 17 (16 th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:-
The order alleged to have been breached must state clearly and unequivocally what should and should not be done. This ensures that a party will not be found in contempt where an order in unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning…
28. From the reading of the law especially Mwongozo and the Lapfund Act, the contemnors argued that they do not have a role in either selection, replacing or assigning duties to the board and thus they cannot be said that they have hindered the resumption of office by the applicants. They have been carrying out their legal duties as CEO and Chairperson of Lapfund without any hindrance of the applicants to access their offices. Further Schedule 1.4 of the Code of Governance for State Officials (Mwongozo) as read with the Local authorities Provident Fund Act stipulates that the 2 nd contemnor is only required to set an agenda for the meeting and call for such a meeting where there is a substantive agenda. Further, the court did not expressly order the
2 nd contemnor to hold meetings as such he cannot be held in contempt for not holding a full board meeting. Additionally, Schedule 1.19 does not mandate the 1 st contemnor to call for full board meetings and as such he should not be held in contempt for an act or omission that is not expressly his role and orders issued by the court did not direct anything to the contrary.
29. The contemnors submitted that they did not have power to reinstate the applicants to the board and they sought for direction from the 1 st respondent and have so far not received any. Further, the 2 nd contemnor wrote a letter dated 29 th January 2024 to the 1st respondent on the revised annual budget for 2023/2024 advising him that the court had revoked the appointment of the new board members and as such Lapfund could not hold a board meeting to discuss and approve the revised budget until a new board is constituted. Additionally, the 1 st contemnor prepared the 2024/2025 budget and in the absence of a proper board it was forwarded to the appointing authority, the 1 st respondent who disburses funds in the entire country for approval and to which does not in any way demonstrate disobedience of court orders issued on 19 th January 2024.
30. Whilst relying on the case of Oilfields Movers Ltd vs Zahara Oil & Gas Limited [2020] eKLR , the contemnors argued that the standard of proof in contempt proceedings is quite high and requires the applicants to prove beyond any shadow of a doubt. The court held that:-
It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or motive of the existence of the order of the court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty.
31. The mere allegations that court orders were issued against them and that they are in contempt of those orders is an afterthought that amounts to an abuse of the court process.
32. Further reliance was placed in the case of MNN vs JMM [2022] eKLR which held as follows on the burden of proof for contempt of court:-
A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily….it must be higher than proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi criminal in nature.
33. Further reliance was placed on Samuel M. N. Mweru & Others vs National Land Board Commission & 2 Others (supra) where the court held as follows:-
The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough since the non complier may genuinely, albeit mistakenly believe that he or she is entitled to act in a way claimed to constitute the contempt. In such a case good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bone fide (though unreasonableness could evidence lack of good faith). These requirements that is the refusal to obey should be both wilful and mala fides and that unreasonable non compliance provided it is bona fide does not constitute contempt- accord with the broader definition of the crime, of which non compliance with civil orders is a manifestation. They show that the offence is committed not by the mere disregard of a court order but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. The honest belief that non compliance is justified or proper is incompatible with that intent.
34. The contemnors argued that citing a party for contempt of court has grave repercussions which include imprisonment and seizure of their personal property, thus the court should first satisfy itself that indeed issued orders to a party and that party has deliberately violated such orders. Reliance was placed in the case of Katsuri Ltd vs Kapurchand Depar Shali [2016] eKLR where the court held:-
The courts take the view that where the liberty of the subject is or might be involved, the breach for which he alleged contemnor is cited must be precisely defined. A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be satisfactorily proved…..it must be higher than proof on a balance of probability, almost but not exactly, beyond reasonable doubt.
35. Further reliance was placed in Sheila Cassatt Issenberg & Another vs Antony Machatha Kinyanjui (supra) where the court held as follows:-
But even as courts punish for contempt to safeguard the peace and development of society and the rule of law, it must be borne in mind that the power to punish for contempt is a discretionary one and should be used sparingly. That is why the court observed in Carey vs Laiken that if courts were to find contempt too easily a court’s outrage might be treated as just so much bluster that might ultimately cheapen the role and the authority of the very judicial power it seeks to protect. The court’s contempt power should be used cautiously and with great restraint. It is an enforcement power of last resort rather than first resort.
36. Corresponding reliance was placed on the case of Gatharia K. Mutikika vs Baharini Farm Ltd [1985] KLR 227 where the court held:-
A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily….it must be higher than
proof on a balance of probabilities, almost but not exactly beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi criminal in nature.
However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge…Recourse ought not to be heard to process contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the part of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject….applying the test that the standard of proof should be consistent with the gravity of the alleged contempt…..it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration whether the offender is a party to the proceedings or not.
In light of the gravity of the personal consequences that would ordinarily flow from a finding of contempt, the law requires proof that the order in question was brought to the attention of the alleged contemnor as proof that he/she had personal knowledge of the said order.
37. In light of that, the contemnors argued that the applicants having failed to prove all the elements required to make a case for contempt against them, they should not be punished for contempt of court.
38. The petitioners filed submissions dated 15 th February 2026 in light of the appeal in the Court of Appeal being Civil Appeal No. E143 of 2024 and the judgment delivered on 9 th May 2025. The Court of Appeal outlines the issues for determination as follows:-
• whether the trial court had jurisdiction to hear and determine the amended petition;
• whether the trial court erred in finding that the petitioners established violation of their rights under Article 47 of the Constitution and of their legitimate expectation to serve on the board for the full term of three years, and
• whether the trial court erred in finding that the 1 st appellant acted in violation of the Constitution in revoking the appointment of the 1 st to 5 th respondents and appointing the 6 th to 12 th respondents to the Board.
39. The appellate court was satisfied that the trial court properly found that the 1 st respondent exercised power arbitrarily in revoking the appointment of the 1 st to 5 th petitioners from the Board and that the manner of their removal was not in accord with the provisions of Articles 47 and 236 of the Constitution. On the third issue, the appellate court found that the only legitimate expectation that the petitioners could have had which was grounded on law and the Constitution is that their removal from the board should it occur before the expiry of their terms, would be done in accordance with the provisions of Article 47 and 236 of the Constitution as well as Fair Administrative Action.
40. The court further held that given the manner they were appointed, they did not have a legitimate expectation to remain on the board for the term indicated on their letters of appointment.
41. Thus, the petitioners argued that the appellate court did not quash or set aside the orders issued on 19 th January 2024 restraining the respondents from interfering or replacing them as board members of the Lapfund for the remainder of their term.
42. Thus, the orders issued by the present court remain valid and binding. Further, there was no stay of execution on the said orders and thus the said orders were fully operational and valid and the respondents were under a legal obligation to comply with the court orders. The respondents cannot retroactively rely on a later appellate judgment to justify prior disobedience of valid court orders.
43. The contemnors equally filed further submissions dated 27 th July 2025 in light of the judgment of the appellate court delivered on 9 th May 2025. The contemnors reiterated that they are not employees or agents of the 1 st respondent but they are appointees of the Lapfund which is a separate legal entity under the Lapfund Act. They further argued that the petitioners failed to provide any proof that they acted under the specific command of the National Treasury and their letter dated 29 th January 2024 shows consultation with and not subordination to the National Treasury. Further they stressed that the Court of Appeal’s judgment did not alert the fundamental fact that they were not parties to the original suit and were not personally bound by the High Court’s orders.
44. The contemnors submitted that the Court of Appeal rejected the argument that the petitioners had a legitimate expectation to serve their full term meaning their claim of frustration lacks legal basis. Thu
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