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ELRCDismissedCause 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)· [2015] KEELRC 987 (KLR)

Benjamin Tezi Bongo & 2 others v United Kenya Club & 8 others [2015] KEELRC 987 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
23 April 2015
1,341 words in judgment
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The bottom line

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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

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Executive summary

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Before the Industrial Court at Nairobi were two applications: the Claimants' Notice of Motion dated 9th December 2014 seeking punishment of the Respondents for contempt of the orders issued on 17th November 2014, and the 1st Respondent's Notice of Motion dated 21st November 2014 seeking to vacate or lift those orders. Parties consented to prosecute both applications by written submissions. The 2nd to 9th Respondents submitted they had complied with the orders by reinstating the Claimants, relying on Ochino v Okombo on personal service of orders; the 1st Respondent's replying affidavit deposed that the Claimants were reinstated with letters and payslips showing continued full salary. The Claimants relied on Shimmers Plaza, Olulenyi and Africa Management Communication International, arguing the Respondents knew of the orders having instructed counsel to challenge them. The court set out the legal framework: Section 5 of the Judicature Act as the true basis of contempt, Section 20(7) of the Industrial Court Act, four elements of contempt (lawful order, knowledge, ability, failure to comply), and a standard of proof above balance of probabilities but below beyond reasonable doubt. It endorsed the principle that court orders must be obeyed to preserve judicial authority. However, it found the Respondents had complied by reinstating the Claimants and paying salaries, and that the compulsory leave was a legitimate employment measure pending investigations. The court declined to commit the alleged contemnors, declined to revise the orders, directed that investigations conclude within 30 days, and ordered each party to bear their own costs.

Key legal issues

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01

Elements of contempt

Holding

Contempt requires proof of a lawful order, knowledge of it, ability to comply and failure to comply, all of which must be in place

Reasoning

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.

p. 2
02

Statutory basis of contempt jurisdiction

Holding

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

Reasoning

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.

p. 2
03

Compliance with reinstatement orders

Holding

Reinstatement to position and continued payment of full salary constituted obedience to the orders, defeating the contempt application

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Declined to commit the alleged contemnors as the Respondents complied with the Court orders by reinstating the Claimants and paying their salaries
  2. 2.Directed that the ongoing investigations be concluded in the next 30 days
  3. 3.Declined to revise the orders granted on 17th November 2014
  4. 4.Each party to bear their own costs of the applications

Authorities

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Legislation

  • Judicature Act Cap. 8 Laws of KenyaSection 5(1) and 5(2)
  • Industrial Court ActSection 20(7) and Section 20(4)

Cases cited (6)

  • Ochino & Another v Okombo & 4 Others
    [1989] KLR 165
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    Civil Appeal No. 33 of 2012
  • Jeremiah Kalachi Olulenyi v William Ngotiek
    [2014] eKLR
  • Africa Management Communication International Limited v Joseph Mathenge Mugo & Another
    [2013] eKLR
  • Kenya Airways Ltd. Vs. Aviation & Allied Workers Union
    Cause No. 421(N) of 2009
  • Commercial Bank of Africa Ltd. v. Ndirangu
    [1991] LLR 2163 (AK)
Jurisdiction invoked
Industrial Court Act Section 20(7) and Section 5 of the Judicature Act Cap. 8 Laws of Kenya

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, "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.