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ELRCDismissedCause No. 1275 of 2014 (Notice of Motion dated 13th November 2014)· [2015] KEELRC 1217 (KLR)

Kenya Union of Commercial Food & Allied Workers Union v Tusker Mattresses Limited [2015] KEELRC 1217 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
23 March 2015
1,569 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to jail company officials for defying orders because the union's contempt application skipped mandatory procedural steps.

What this practically means

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Executive summary

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The Claimant union filed a Notice of Motion under Section 12 of the Industrial Court Act, Sections 5 and 6 of the Judicature Act and Articles 47 and 50 of the Constitution seeking leave to commence contempt proceedings and committal of the Respondent's directors and officers - George Kamau, Anderson Mathai and Francis N. Kimani - for disobeying orders issued on 1st August 2014 by Marete D. K. Njagi J restraining the Respondent from forcing employees to sign key performance indicators. The Respondent opposed through grounds of objection, arguing that no notice was served on the Attorney General, the orders were not personally served on the persons sought to be committed, and that the claimant had improperly combined the leave and committal applications, rendering the application ex facie defective. The court, Nzioki wa Makau J, set out the law of contempt in Kenya, locating jurisdiction in Section 5(1) of the Judicature Act as applied to courts of equal status with the High Court under Article 162(2), with procedure governed by Order 52 of the Rules of the Supreme Court of England, requiring prior leave, notice to the Attorney General's Chambers, a statement and a verifying affidavit, and personal service. Finding that the application was unsupported by any notice of intention, statement or verifying affidavit, and that such defects are not curable under Article 159(2)(d) because committal is quasi-criminal, the court dismissed the application as incurably defective with costs to the Respondent.

Key legal issues

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01

The law and procedure of contempt in Kenya

Holding

The true basis of contempt jurisdiction is Section 5(1) of the Judicature Act, applied mutatis mutandis to courts of equal status with the High Court, and the procedure is that in Order 52 of the Rules of the Supreme Court of England: leave, notice, a statement and a verifying affidavit are mandatory.

Reasoning

The court traced contempt jurisdiction to Section 5(1) of the Judicature Act, which incorporates the powers of the High Court of Justice in England. Since the section prescribes no procedure, the court adopted Order 52 of the Rules of the Supreme Court of the UK as the applicable procedure, requiring prior leave, notice to the Attorney General's Chambers, a statement identifying the applicant, contemnor and grounds, and a verifying affidavit. Personal service of the substantive application on the contemnor is required unless dispensed with.

p. 2
02

Whether the application complied with the mandatory procedural requirements for committal

Holding

It did not: there was no notice of intention to institute contempt proceedings, no statement and no verifying affidavit; the application was incurably defective.

Reasoning

Although leave had been granted on 17th November 2014, the court found the application lacked the mandatory notice, statement and verifying affidavit required by the rules. The Respondent also raised lack of personal service and improper combination of the leave and committal applications. Because committal is quasi-criminal, the stringent requirements cannot be waived under Article 159(2)(d); facts appearing only in submissions are inadequate to found a committal order.

p. 3

Legal principles established

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  • Section 5(1) of the Judicature Act, which gives the High Court and Court of Appeal the power to punish for contempt as possessed by the High Court of Justice in England, applies mutatis mutandis to courts of the status of the High Court established under Article 162 of the Constitution
  • Committal applications must be preceded by leave, notice to the Attorney General's Chambers at least one day prior, and must be accompanied by a statement and verifying affidavit, per Order 52 of the Rules of the Supreme Court of England
  • Committal proceedings are quasi-criminal in nature and attract more stringent requirements than ordinary civil process; procedural defects in contempt applications are not mere technicalities curable under Article 159(2)(d)

Court orders

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  1. 1.The application for committal for contempt dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Industrial Court Act 2011; Sections 5 and 6 of the Judicature Act Cap 8; Articles 47 and 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Commercial Food & Allied Workers Union v Tusker Mattresses Limited [2015] KEELRC 1217 (KLR)", Case Analysis (2015). Cause No. 1275 of 2014 (Notice of Motion dated 13th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1217/eng@2015-03-23

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