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ELRCDismissedNotice of motion dated 25.08.2014 in the principal suit (notice of motion filed 17.04.2014)· [2014] KEELRC 1371 (KLR)

National Union of Water and Sewerage Employees v Nyeri Water and Sanitation Company Limited [2014] KEELRC 1371 (KLR)

Industrial Court of Kenya
31 October 2014
BOByram Ongaya
1,057 words in judgment
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The bottom line

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A Kenyan court threw out a contempt case because the union skipped two essential steps: getting the court's permission first and proving the order was served on those accused.

What this practically means

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Executive summary

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The claimant, a sector trade union, filed a notice of motion dated 25 August 2014 seeking to cite ten named directors and the company secretary of the respondent company for contempt of interim status quo orders issued on 7 May 2014 and extended on subsequent dates. The claimant alleged that while the orders were subsisting, the respondents convened a board meeting on 31 July 2014 whose agenda was the appointment of the respondent's managing director, contrary to the status quo order. The application was brought under Order 40 Rule 3(1) of the Civil Procedure Rules, Sections 11 and 12 of the Industrial Court Act, the Industrial Court Rules and Section 5 of the Judicature Act. The respondent filed a preliminary objection challenging the claimant's locus standi and the court's jurisdiction, and opposed the motion on grounds including want of leave, non-service of the order, and abuse of process, relying on Order 52 Rule 2(1) of the Rules of the Supreme Court of England and the ruling in John Mugo Gachuki v New Nyamakima Company Limited. Byram Ongaya J dismissed both the motion and the preliminary objection. The court held that there was no evidence the claimant had obtained the leave required for contempt proceedings, rendering the motion incurably defective; that there was no proof of service of the status quo order on the proposed contemnors, so disobedience was not established; and that the court had jurisdiction since the dispute was between a union and an employer over a human resource function, with standing to be determined at full hearing. Each party was ordered to bear its own costs, a restraint on vesting the appointment power in the Governor for Nyeri County was maintained, and parties were directed to take further directions in the suit.

Key legal issues

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01

Want of leave for contempt proceedings

Holding

The notice of motion failed for want of leave

Reasoning

Order 52 Rule 2(1) of the Rules of the Supreme Court of England, applicable to contempt applications as urged by the respondent, requires prior leave. The court found no evidence on record that the claimant applied for and obtained leave, rendering the contempt application fatally defective irrespective of the merits of the alleged breach.

p. 2
02

Service of the order and proof of disobedience

Holding

Contempt was not established

Reasoning

The claimant alleged the 31 July 2014 board meeting breached the status quo order of 7 May 2014. However, there was no evidence the order was served on the proposed contemnors, and the respondent contended the order was fluid and unclear. Without proof of service, the disobedience could not be established.

p. 2
03

Jurisdiction and locus standi

Holding

The court has jurisdiction; standing to be determined at full hearing

Reasoning

The dispute is between a trade union and an employer, and the subject matter - appointment of a managing director - is a human resource function, squarely within the Industrial Court's jurisdiction. The preliminary objection on locus standi was premature, as standing can only be properly canvassed after close of pleadings and full hearing.

p. 2

Legal principles established

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  • Leave of the court is a prerequisite to instituting contempt proceedings; an application brought without leave is fatally defective
  • Alleged contempt cannot be established without proof of service of the order upon the alleged contemnors
  • A dispute between a trade union and an employer over appointment of a managing director falls within the Industrial Court's jurisdiction; locus standi is best determined after close of pleadings and full hearing

Court orders

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  1. 1.Notice of motion dated 25.08.2014 dismissed
  2. 2.Preliminary objection dated 26.05.2014 dismissed
  3. 3.Each party to bear own costs of the application and the preliminary objection
  4. 4.The respondent, by itself, its board, board members, agents or employees, shall not take steps to vest the power to appoint the respondent's director in the Governor for Nyeri County until further orders or pending the hearing of the suit or the notice of motion filed on 17.04.2014
  5. 5.Parties to take directions on further steps in the suit

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rule 3(1)
  • Industrial Court ActSections 11 and 12
  • Industrial Court RulesRules 16, 19, 20, 27 and 28
  • Judicature ActSection 5
  • Rules of the Supreme Court of EnglandOrder 52 Rule 2(1)

Cases cited (1)

  • John Mugo Gachuki –Versus- New Nyamakima Company Limited
    (2012) eKLR
Jurisdiction invoked
Sections 11 and 12 of the Industrial Court Act; Industrial Court Rules Rules 16, 19, 20, 27 and 28

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "National Union of Water and Sewerage Employees v Nyeri Water and Sanitation Company Limited [2014] KEELRC 1371 (KLR)", Case Analysis (2014). Notice of motion dated 25.08.2014 in the principal suit (notice of motion filed 17.04.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1371/eng@2014-10-31

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