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Court of AppealPartially AllowedCivil Appeal No. 63 of 2014· [2015] KECA 718 (KLR)

Kyoga Hauliers Limited v Long Distance Truck Drivers & Allied Workers Union [2015] KECA 718 (KLR)

Court of Appeal of Kenya
15 May 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
5,063 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a company cannot be jailed for contempt unless the court order was personally served on it, and set aside a judgment obtained without proper service.

What this practically means

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Executive summary

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Kyoga Hauliers Limited appealed against a ruling of the Industrial Court at Mombasa (Radido, J.) dated 16 May 2014 in Industrial Cause No. 61 of 2013, by which the court allowed the union's contempt application and summoned a director of the appellant to show cause why he should not be committed to civil jail, and dismissed the appellant's application to set aside an ex-parte judgment of 28 June 2013 requiring the appellant to grant the union recognition and deduct and remit union dues. The Court of Appeal allowed the appeal in full. First, on contempt: the court held that under Section 5(1) of the Judicature Act Kenyan contempt powers mirror those for the time being possessed by the High Court of Justice in England, and that since 1 October 2012 the English procedure under Part 81 requires the application to be made in the same proceedings, with each alleged act of contempt identified separately and numerically, supported by affidavits containing all evidence, and served personally. The union's application failed these requirements; the provisions it invoked (Section 13 of the Industrial Court Act and Rules 29(4) and 31(1)) conferred no contempt jurisdiction, and contempt is not among the five modes of execution under Section 38 of the Civil Procedure Act. Further, the decree was never served personally on the directors nor endorsed with a penal notice. Second, on setting aside the ex-parte judgment: there was no evidence of service of summons and statement of claim; service affidavits pointed only to unnamed guards, clerks and gatemen; the judge acted on the wrong premise regarding court service; and the claim was fixed for hearing without directions. The discretion was therefore not properly exercised. The court reversed both decisions, set aside the contempt order and the ex-parte judgment, granted the appellant unconditional leave to defend, and awarded the appellant costs in both courts.

Key legal issues

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01

Procedure for contempt proceedings under Section 5(1) of the Judicature Act

Holding

Since the coming into force in England of the Civil Procedure (Amendment No. 2) Rules 2012 (Part 81), Kenyan courts must adopt the new procedure: application in the same proceedings, grounds identified separately and numerically, supporting affidavits with all evidence, and personal service. The respondent's application failed these requirements.

Reasoning

Section 5(1) of the Judicature Act ties Kenyan contempt powers to those possessed for the time being by the High Court of Justice in England. The old Order 52 RSC procedure requiring leave and notice was replaced in 2012. The respondent's motion did not separately and numerically identify each alleged act of contempt, was supported by a single affidavit in general and scanty terms, and was not served personally on the directors; the court did not dispense with or vary service.

p. 5
02

Jurisdictional basis for contempt invoked by the respondent

Holding

Sections 13 of the Industrial Court Act and Rules 29(4) and 31(1) of the Industrial Court (Procedure) Rules do not empower the court to punish for contempt; Rule 31(2) only imports the High Court execution modes, which exclude contempt.

Reasoning

Section 13 provides that judgments are enforceable in accordance with the rules; Rule 31(2) imports High Court execution rules. Under Section 38 of the Civil Procedure Act and Order 22 there are only five modes of execution, none of which is contempt. Rule 29(4) concerns record of proceedings and evidentiary conclusiveness of awards; Rule 31(1) concerns issue of execution and warrants. Neither bears on committal applications.

p. 6
03

Whether the ex-parte judgment should be set aside and leave to defend granted

Holding

There was no evidence of service of summons and statement of claim on the appellant; subsequent service affidavits were superfluous; service was effected on unnamed guards, clerks and gatemen and was improper; the court fixed the matter for hearing without giving directions and without addressing the pending application. The discretion was therefore not properly exercised and the appeal on this ground succeeded.

Reasoning

Rule 11(2) of the Industrial Court (Procedure) Rules mandatorily requires service of summons with the statement of claim. The record contained no affidavit of such service; the counsel's admission on 7 March 2013 that no papers had been served contradicted the process server's affidavit. The court's purported service practice required a written request and fee, neither shown. Without service of pleadings, the judgment was not obtained after a fair trial, warranting interference with the discretionary decision.

p. 7

Legal principles established

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  • Courts in Kenya exercising contempt jurisdiction under Section 5(1) of the Judicature Act must apply the current English procedure; since 1 October 2012 that requires the committal application to be made in the proceedings in which the disobeyed order was made, with each alleged act of contempt identified separately and numerically and supported by affidavits containing all evidence relied on, and personal service unless dispensed with.
  • An order of court may not be enforced by committal for contempt unless a copy of the order has been served personally on the person required to comply and is endorsed with a penal notice.
  • Contempt proceedings are not among the modes of execution of a decree under Section 38 of the Civil Procedure Act and Order 22 of the Civil Procedure Rules.
  • An appellate court will interfere with the exercise of judicial discretion where the judge failed to take into account a relevant factor, arrived at an erroneous conclusion, or was plainly wrong; that is, where discretion was exercised capriciously, whimsically or idiosyncratically.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The decisions of the court below on both applications are reversed
  3. 3.The order requiring the director of the appellant, Mr. Ismail Gulam, to personally appear before court to show cause why he should not be committed to civil jail for contempt of court is set aside
  4. 4.The ex-parte judgment entered against the appellant dated 28th June, 2013 is set aside
  5. 5.The appellant is granted unconditional leave to defend the claim
  6. 6.The costs of the appeal together with those in the Industrial Court are awarded to the appellant

Authorities

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Legislation

  • Labour Relations ActSection 54(1)
  • Industrial Court ActSection 13
  • Industrial Court (Procedure) RulesRule 29(4)
  • Industrial Court (Procedure) RulesRule 31(1)
  • Industrial Court (Procedure) RulesRule 31(2)
  • Industrial Court (Procedure) RulesRule 11(2)
  • Industrial Court (Procedure) RulesRule 8
  • Judicature ActSection 5(1)
  • Civil Procedure ActSection 63(c)
  • Civil Procedure ActSection 38
  • Civil Procedure RulesOrder 40 Rule 31
  • Civil Procedure RulesOrder 22 Rule 28
  • Civil Procedure RulesOrder 22
  • Civil Procedure RulesOrder 53
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 25(c)
  • Constitution of KenyaArticle 50(1)
  • Companies Act
  • The Contempt of Court Act, 1981 (England)
  • Rules of the Supreme Court (England)Order 52 Rules 1 to 4
  • Supreme Court of Judicature Act, 1873 (England)
  • Civil Procedure (Amendment No. 2) Rules 2012 (England)Part 81

Cases cited (5)

  • Ochino & Another v Okombo
    (1989) KLR 165
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & others
    (2014) eKLR
  • Shah v Mbogo & Another
    (1967) E.A. 116
  • Pithon Waweru Maina v Thuka Mungira
    Civil Appeal No. 27 of 1982
  • Patel v E.A. Cargo Handling Services Ltd
    (1974) E.A. 75
On appeal from
Industrial Court of Kenya at Mombasa
Industrial Cause No. 61 of 2013
Jurisdiction invoked
First appellate appeal from the Industrial Court (now Employment and Labour Relations Court) pursuant to its appellate jurisdiction under the Industrial Court Act framework

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kyoga Hauliers Limited v Long Distance Truck Drivers & Allied Workers Union [2015] KECA 718 (KLR)", Case Analysis (2015). Civil Appeal No. 63 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/718/eng@2015-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.