Benjamin Tezi Bongo & 2 others v United Kenya Club & 8 others [2015] KEELRC 987 (KLR)
The bottom line
#A Kenyan employment court refused to punish employers for contempt because they had already reinstated the workers and paid their salaries as ordered.
What this practically means
#Executive summary
#Key legal issues
#Elements of contempt
Contempt requires proof of a lawful order, knowledge of it, ability to comply and failure to comply, all of which must be in place
The court set out four broad elements that must all coexist before a contempt finding can be made. It then examined the facts and found the Respondents had complied with the 17th November 2014 orders by reinstating the Claimants and paying their salaries, so committal could not issue despite the compulsory leave taken to allow investigations.
Statutory basis of contempt jurisdiction
The true basis of contempt law in Kenya is Section 5 of the Judicature Act, supplemented by Section 20(7) of the Industrial Court Act
The court identified the Judicature Act as the starting point for contempt, incorporating the powers of the High Court of Justice in England, and noted the Industrial Court Act provision creating an offence for non-compliance with orders under Section 20(4), punishable by fine or imprisonment.
Compliance with reinstatement orders
Reinstatement to position and continued payment of full salary constituted obedience to the orders, defeating the contempt application
The Respondents produced letters of reinstatement and payslips showing continued payment of full salaries. The subsequent compulsory leave was an aspect of the employment relationship the 1st Respondent was entitled to enforce, with investigations under way which the Court would not interfere with but directed be concluded within 30 days.
Legal principles established
#- To prove contempt the applicant must prove four elements: existence of a lawful order, knowledge of the order, ability to comply, and failure to comply
- The standard of proof for contempt is above balance of probabilities but below beyond reasonable doubt
- Personal service of the order with an indorsement of consequences is generally required before committal for contempt
Court orders
#- 1.Declined to commit the alleged contemnors as the Respondents complied with the Court orders by reinstating the Claimants and paying their salaries
- 2.Directed that the ongoing investigations be concluded in the next 30 days
- 3.Declined to revise the orders granted on 17th November 2014
- 4.Each party to bear their own costs of the applications
- Jurisdiction invoked
- Industrial Court Act Section 20(7) and Section 5 of the Judicature Act Cap. 8 Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Tezi Bongo & 2 others v United Kenya Club & 8 others [2015] KEELRC 987 (KLR)", Case Analysis (2015). Cause referenced as arising from orders issued 17th November 2014 (Notice of Motion dated 9th December 2014; 1st Respondent's Notice of Motion dated 21st November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/987/eng@2015-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.