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ELRCPartially AllowedApplication dated 10th August 2015 (arising from Industrial Court Award of 22nd May 2015)· [2015] KEELRC 519 (KLR)

Kenya Ferry Services Limited & another v Dock Workers Union (Ferry Branch) & 2 others [2015] KEELRC 519 (KLR)

Industrial Court of Kenya
25 September 2015
1,501 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court jailed Kenya Ferry Services' top executives for paying only part of a court-ordered wage award — partial compliance still counts as contempt.

What this practically means

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Executive summary

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The Kenya Union of Commercial, Food and Allied Workers applied for contempt proceedings against Kenya Ferry Services Limited's CEO, Mr. Musa Hassan Musa, and HR and Administration Manager, Mr. Thomas Tuva Kenga, alleging non-implementation of an Industrial Court Award issued on 22nd May 2015 adjusting wages of the Respondent's members. The Parties had consented to implementation from 1st July 2015. The Respondent sought a fine of Kshs. 2,000,000, committal to civil jail for up to 6 months, or alternatively fines of Kshs. 500,000 each. The Claimant conceded partial compliance: arrears for 2013/14 (Kshs. 25,577,305) were paid in July 2015 from internal funds, while the 2014/15 balance of Kshs. 24,337,663 awaited Treasury funding through the Supplementary Budget, and contract staff absorption was under analysis. The Court held that orders are not implemented in halves without the Court's leave or the Parties' agreement, and that a court award is not subject to Executive endorsement. It found the Claimant had stayed execution of the Award on its own terms without reference to the Court. The Alleged Contemnors were properly cited, bearing the greatest responsibility for compliance; partial compliance was relevant only to mitigation. The Court convicted both officers of contempt, sentenced each to 5 months' imprisonment, suspended for one month to allow purging of the contempt, directed mention on 26th October 2015 with personal attendance, and awarded costs of the application to the Respondent.

Key legal issues

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01

Whether partial implementation of a court order amounts to contempt

Holding

Partial implementation without the Court's leave or the Parties' agreement constitutes contempt; the Claimant unilaterally stayed execution of part of the Award.

Reasoning

The Parties had agreed full implementation by 1st July 2015. The Claimant paid arrears for 2013/14 but unilaterally deferred the 2014/15 balance to December 2015, pending Ministry and Treasury approval. The Court held that implementation in halves requires either the Court's permission or the Parties' subsequent agreement, neither of which existed. The Claimant should have sought extension from the Court rather than approval from the Ministry.

p. 2
02

Whether the cited officers bear personal responsibility for contempt

Holding

The CEO and HR & Administration Manager were properly cited for contempt as they bore the greatest responsibility for compliance.

Reasoning

The Court found adequate documentation showing the two Officers had the greatest responsibility in ensuring compliance with the Award. They neither paid the Employees their dues in full nor engaged casual or temporary staff on regular terms as directed. Their own Replying Affidavits acknowledged non-compliance. One of them had also written a letter impeding the decision of the Court, as alleged by the Respondent.

p. 3
03

The appropriate sentence for contempt

Holding

One sentence suffices despite a multiplicity of sentences sought; 5 months' imprisonment each, suspended for one month to allow purging of the contempt.

Reasoning

The Respondent sought a fine of Kshs. 2,000,000, civil jail for 6 months, or alternatively fines of Kshs. 500,000 each. The Court held one sentence is sufficient. Part compliance had a mitigating influence; the sentence was suspended for one month with liberty to purge the contempt, and the Contemnors must attend Court in person until discharged.

p. 3

Legal principles established

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  • Orders of the Court must be implemented in full and cannot be implemented selectively, in halves, or at the convenience of Government organs; the mode and pace of implementation can only be modified through the Court or agreement of the Parties.
  • A court award is not subject to the endorsement or approval of the Executive.
  • Partial compliance is relevant only to mitigation of sentence, not to liability for contempt.

Court orders

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  1. 1.The Claimant's CEO Mr. Musa Hassan Musa and HR & Administration Manager Mr. Thomas Tuva Kenga are declared in Contempt of the Decision of the Court made on 22nd May 2015
  2. 2.They shall serve a jail term of 5 months each
  3. 3.The sentence is suspended for 1 month during which the Contemnors may purge the contempt
  4. 4.Parties may file Affidavits explaining any changes on implementation of the Award before the next Court Session
  5. 5.Mention on 26th October 2015
  6. 6.The Contemnors are to attend Court in Person on Mention and any subsequent date until discharged by the Court
  7. 7.Costs of the application to the Respondent

Authorities

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Legislation

  • Industrial Court ActSection 12
  • Industrial Court [Procedure] Rules 2010Rule 31
  • Judicature Act Cap 8 the Laws of KenyaSection 5
Jurisdiction invoked
Section 12 of the Industrial Court Act; Rule 31 of the Industrial Court [Procedure] Rules 2010; Section 5 of the Judicature Act Cap 8

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, "Kenya Ferry Services Limited & another v Dock Workers Union (Ferry Branch) & 2 others [2015] KEELRC 519 (KLR)", Case Analysis (2015). Application dated 10th August 2015 (arising from Industrial Court Award of 22nd May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/519/eng@2015-09-25

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