Hakika Transport Services Limited v Kenya Long Distance Truck Drivers & Allied Workers Union [2015] KEELRC 508 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can punish contempt but dismissed a union's application because it could not prove an employer's lockout to the demanding standard contempt requires.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC to punish for contempt
The Court has jurisdiction; Section 5 of the Judicature Act must be construed with the adaptations required by Section 7 of the Fifth Schedule so as to include the ELRC as a Superior Court with power to punish contempt.
The Court traced the history of the Industrial Court, from a tripartite creation outside the Judiciary, through the Labour Institutions Act 2007 (whose Section 14 gave express contempt powers) to Article 162 of the Constitution of 2010. Although Parliament omitted an express contempt provision from the Industrial Court Act 2011, the Court, as a Superior Court under Article 162(1), must be read into Section 5 of the Judicature Act. The High Court is barred by Article 165(5) from entertaining contempt arising in ELRC proceedings. The Preliminary Objection collapses.
Whether contempt was established
Contempt was not established; the Respondent failed to prove a continuing lockout in defiance of the 8th June 2015 Order to the required standard.
Knowledge of the Order was admitted, and the Order was unambiguous. However, the six named Employees were shown by the Director's affidavit to have worked and been paid after the Order. No affidavits from the 61 allegedly locked-out Employees were filed. Payment of salary without reinstatement does not denote an intention not to continue employment and cannot constitute lockout. The Chepkurui incident was unrelated to the Order. The Respondent did not meet the elevated standard of proof.
Legal principles established
#- The Employment and Labour Relations Court, as a Superior Court under Article 162(1), may punish for contempt under Section 5 of the Judicature Act read with the conformity requirement of Section 7 of the Fifth Schedule to the Constitution
- Contempt of Court arising out of an employment and labour relations matter is itself an employment and labour relations matter within the exclusive jurisdiction of the Court
- Knowledge of a Court order by an alleged contemnor or his advocate is sufficient to found contempt; formal service is not decisive
- The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt
- The High Court cannot exercise contempt jurisdiction over matters arising from proceedings of the Employment and Labour Relations Court
Court orders
#- 1.The Application dated 15th June 2015 filed by the Respondent is dismissed in its totality
- 2.Costs of the Application in the Cause
- 3.Parties to fix the main Claim for hearing
- Jurisdiction invoked
- Article 162 of the Constitution of Kenya 2010; Employment and Labour Relations Court Act, Section 12; Section 5 of the Judicature Act (Cap 8) as read with Section 7 of the 5th Schedule to the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hakika Transport Services Limited v Kenya Long Distance Truck Drivers & Allied Workers Union [2015] KEELRC 508 (KLR)", Case Analysis (2015). Application dated 15th June 2015 (in the main Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/508/eng@2015-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.