Kenya Union of Commercial Food & Allied Workers Union v Tusker Mattresses Limited [2015] KEELRC 1217 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#The law and procedure of contempt in Kenya
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.
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.
Whether the application complied with the mandatory procedural requirements for committal
It did not: there was no notice of intention to institute contempt proceedings, no statement and no verifying affidavit; the application was incurably defective.
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.
Legal principles established
#- 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
#- 1.The application for committal for contempt dismissed
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lucas Otieno Ondong v Equitorial Commercial Bank Limited & another [2016] KEELRC 1838 (KLR)[2016] KEELRC 1838 (KLR)31 Mar 2016distinguished
Cite this brief
#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.