Kenya Long Distance Truck Drivers & Allied Workers Union v Kyoga Hauliers Limited [2014] KEELRC 985 (KLR)
The bottom line
#Kenyan courts can summon company directors to face civil jail for ignoring employment court orders, and companies cannot dodge enforcement by claiming they were never served.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was served with the decree
The Court found, on a balance of probabilities, that the Respondent was served with the decree on 5 July 2013 and was aware of it
The process server deposed that a security guard took the decree inside and returned saying a Legal Officer, Hamadi, had accepted it but declined to endorse a copy. Neither Hamadi nor the security guard filed an affidavit dealing first-hand with these events. The Respondent's director's affidavit did not address the guard taking the decree inside. Weighing the disputed depositions, the Court accepted service was effected and found the Respondent in contempt for ignoring the decree.
Whether directors are the proper parties for committal where the judgment debtor is a company
Committal cannot lie against the company itself; the proper course is to summon its directors to show cause why they should not be committed to civil jail
The Cause and decree were directed at a juristic person, which cannot be imprisoned. Drawing on section 38 of the Civil Procedure Act and Order 22 rule 28 of the Civil Procedure Rules, the Court held that enforcement against a corporation must proceed through the natural persons behind it, and directed the directors, including Ismail Gulam, to appear and show cause.
Whether the judgment/decree should be set aside for want of service and triable issues
The application failed; the Respondent was aware of the Cause, was served with mention and hearing notices, and no triable issues or irreparable loss were established
The Respondent's own address was on record and the Deputy Registrar had notified it of the mention; affidavits of service showed service of the hearing notice on its Legal Clerk. The Conciliator had found 61.38% union membership and no rival union after inspection, findings the Court held should not be lightly disturbed. No loss would flow from deducting and remitting dues, which come solely from employees.
Legal principles established
#- A juristic person cannot be imprisoned for contempt; committal must be directed at natural persons such as its directors, who may be summoned to show cause
- Where a party disputes service but the process server's evidence is not first-hand contradicted by the alleged recipient, the court may find on a balance of probabilities that service was effected
- Factual findings of County Labour Officers/Conciliators should not be easily disturbed by courts
- Courts will not allow parties to abuse court process to frustrate constitutionally guaranteed rights of workers to organise
Court orders
#- 1.The Claimant's committal motion succeeded; the directors of the Respondent, including Mr. Ismail Gulam, were summoned to personally appear before the Court on 30 May 2014 to show cause why they should not be committed to civil jail for contempt of court
- 2.The Respondent's motion seeking stay of execution, setting aside of the judgment/decree and leave to defend was dismissed
- 3.The Union to have costs of both applications
- Jurisdiction invoked
- Section 13 of the Industrial Court Act; rules 29(4) and 31(1) of the Industrial Court (Procedure) Rules, 2010; sections 38 and Order 22 rule 28 of the Civil Procedure Act/Rules for enforcement of decrees
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Long Distance Truck Drivers & Allied Workers Union v Kyoga Hauliers Limited [2014] KEELRC 985 (KLR)", Case Analysis (2014). Cause (Mombasa) – committal motion dated 31 July 2013 and Respondent's motion dated 23 September 2013 (arising from judgment of 28 June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/985/eng@2014-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.