Kenya National Union of Teachers & 2 others v Teachers Service Commission [2018] KECA 214 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that unions and their officials can be fined for defying court orders, even ones addressed to their members.
What this practically means
#Executive summary
#Key legal issues
#Correct standard of proof in contempt proceedings
The trial Judge properly appreciated and applied the Mutitika threshold; the quasi-criminal standard was met on the facts
Contempt being quasi-criminal, the standard is above balance of probabilities but below beyond reasonable doubt. The Court applied the Mutitika tests: existence of a valid order, identification of addressees, whether the order required action or forbearance, and knowledge. Counsel's admissions in court on 9th and 10th July 2013 established that the appellants knew of the orders, and they failed to prove that only the NEC could call off the strike.
Whether clause (c) of the order was self-executory and incapable of being disobeyed
Only the first limb (return to work by 8.00 am on 2nd July 2013) lapsed; the second limb, declaring any continued strike unprotected and illegal, remained live and was transgressed
The Court held the first limb of clause (c) was self-executory and lapsed on 2nd July 2013 at 8.00 am, but the second limb was part of the orders renewed on 9th July 2013. The appellants' continued failure to call off the strike transgressed that limb, which formed the substratum of the second contempt application.
Whether failure to invite mitigation before sentencing vitiates contempt penalties
Mitigation before penalty is best practice in quasi-criminal contempt proceedings, but its omission warranted no remittal where no prejudice or miscarriage was shown
Relying on Woburn Estate and Joseph Wanambisi, the Court reiterated that each step of contempt procedure must be scrupulously followed and mitigation should be invited. However, penalties were within normal limits, no prejudice was raised on appeal, so remittal would serve no purpose and the penalties stand.
Legal principles established
#- Contempt of court proceedings are quasi-criminal in nature and the standard of proof is higher than the balance of probabilities but lower than beyond reasonable doubt
- A court, before finding a contemnor guilty, must establish the existence of a valid order, identify the addressee, determine whether the order required action or forbearance, and establish the addressee's knowledge of the order
- A party who knows of a court order, even one believed irregular or void, must obey it unless and until it is discharged
- Where a union called its members out on strike, the union and its officials bear responsibility for calling off the strike notwithstanding that a return-to-work order was addressed to the members at large
- Good practice requires that a contemnor be accorded an opportunity to mitigate before penalty is imposed, but failure to do so is not fatal absent demonstrated miscarriage of justice or prejudice
Court orders
#- 1.Appeal against the orders adjudging the appellants guilty of contempt of court orders issued on 1st July 2013 and renewed on 9th July 2013 dismissed
- 2.Decision of the trial court finding the appellants in contempt affirmed
- 3.Respondent awarded costs of the appeal
- On appeal from
- Industrial Court of Kenya at Nairobi (now the Employment and Labour Relations Court)
- Industrial Court Petition No. 23 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Industrial Court (Employment and Labour Relations Court) pursuant to its appellate jurisdiction over Industrial Court decisions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Teachers & 2 others v Teachers Service Commission [2018] KECA 214 (KLR)", Case Analysis (2018). Civil Appeal No. 327 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/214/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.