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ELRCDismissedNot stated in judgment· [2016] KEELRC 567 (KLR)

Kenya National Private Security Workers’ Union v P.G. Security Limited [2016] KEELRC 567 (KLR)

Employment and Labour Relations Court
16 August 2016
866 words in judgment
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The bottom line

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A Kenyan employment court refused to jail a company manager for disobeying an order because the applicant couldn't prove the order was actually served on him.

What this practically means

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Executive summary

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The Claimant/Applicant moved the Court by notice of motion dated 31st May 2016, expressed to be brought under Section 12 of the Industrial Court Act 2011, Section 5(1) of the Judicature Act, Section 3A of the Civil Procedure Act and Order 22 Rule 28 of the Civil Procedure Rules 2010, seeking leave to commence contempt proceedings against the Respondent's general manager for disobeying a court order of 9th/12th October 2015, and that the general manager be condemned to a six-month civil jail term. The application was supported by the affidavit of Isaac G. M. Andabwa. The Respondent, through replying affidavits sworn by Joel Atuti and Yogesh Pabari, denied disobeying court orders. The parties filed written submissions; the Respondent filed none, and the Claimant's submissions addressed a different motion than the one before the court. The court set out the four elements of contempt: existence of a lawful order, knowledge of the order, ability to comply, and failure to comply, to be proved to a standard slightly above balance of probabilities but below the criminal standard. It found only the first ingredient established; there was no proof of service of the order on the alleged contemnor, and no proof of ability and wilful failure to comply. The court dismissed the motion with costs to the Respondent. Judgment was dated 29th July 2016 (Nzioki wa Makau J) and delivered at Nairobi on 16th August 2016 by Linnet Ndolo J.

Key legal issues

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01

Ingredients of contempt of court

Holding

All four ingredients must be in place; only the existence of a lawful order was established; knowledge, ability and wilful failure to comply were not proved

Reasoning

The court set out the four elements of contempt as a matter of settled principle, deriving from the inherent jurisdiction of courts to enforce their own orders. It found the lawful order existed but that proof of service was lacking, which alone was fatal, and further that there was no proof the person served had the ability to obey and declined to obey. The motion therefore failed.

p. 2
02

Standard of proof in contempt proceedings

Holding

Slightly above balance of probabilities but below the criminal standard of proof beyond reasonable doubt

Reasoning

Because contempt has penal consequences, the court applied an intermediate standard of proof. Leave-excepted contempt proceedings are limited to contempt in facie curiae; otherwise leave is required. The applicant bore the burden of proving the ingredients to this standard and failed to do so.

p. 2

Legal principles established

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  • To prove contempt, four elements must be established: existence of a lawful order, knowledge of the order, ability to comply, and failure to comply
  • The standard of proof in contempt is above balance of probabilities but below beyond reasonable doubt

Court orders

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  1. 1.The notice of motion dated 31st May 2016 seeking leave to commence contempt proceedings is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Industrial Court ActSection 12
  • Judicature Act cap 8 Laws of KenyaSection 5(1)
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules 2010Order 22 Rule 28
Jurisdiction invoked
Section 12 of the Industrial Court Act 2011; Section 5(1) of the Judicature Act cap 8 Laws of Kenya; Section 3A of the Civil Procedure Act; Order 22 Rule 28 of the Civil Procedure Rules 2010

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 National Private Security Workers’ Union v P.G. Security Limited [2016] KEELRC 567 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/567/eng@2016-08-16

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