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ELRCDismissedApplication dated 1st February 2016 in ELRC Cause (Nairobi)· [2016] KEELRC 1224 (KLR)

Kenya Plantation & Agricultural Workers Union v Agricultural Employers Association & another [2016] KEELRC 1224 (KLR)

Employment and Labour Relations Court
10 March 2016
2,229 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to punish a flower growers' body for contempt because the interim court orders the union relied on had already lapsed.

What this practically means

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Executive summary

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The Claimant union applied on 1st February 2016 for leave to commence contempt proceedings against the Kenya Flower Growers & Cut Flower Exporters Association and its chief officer, Wesley Siele, alleging disobedience of orders issued on 15th October 2015 granting union officials access to members' premises, and seeking committal to civil jail for six months and fines of Kshs.1,000,000 against the Association and Kshs.5,000,000 against Siele, with attachment of assets in default. The Respondents replied that the orders were ex-parte interim orders pending inter-parties hearing fixed for 3rd November 2015; on that date both parties were heard and the Court referred the two disputes - access and amendment of the Recognition Agreement - to a Conciliator, with a report due in 45 days, without extending the interim orders. Conciliation failed, and the Respondents invoked clause 2(j)(x) of the Recognition Agreement to deny access, contending the Claimant should have sought interpretation of the clause rather than contempt. The Court held that it has inherent jurisdiction, exercisable on its own motion or on application, to enforce compliance with its orders, but enforcement requires clear, unequivocal orders that are existing and alive. Since the interim orders of 15th October 2015 were not extended and lapsed upon the reference to conciliation, they could not support contempt. The Court declined the application but, noting the conciliation breakdown, reinstated the orders in force as at 3rd November 2015 pending allocation of a priority hearing date for the main cause, and ordered each party to bear their own costs. The request to transfer the matter to Nakuru was rejected as misplaced.

Key legal issues

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01

Whether contempt proceedings may issue for breach of lapsed interim orders

Holding

They may not. The interim orders of 15th October 2015 were granted pending inter-parties hearing; on 3rd November 2015 both parties were heard, a ruling delivered and the matter referred to conciliation, so the interim orders lapsed and cannot ground contempt.

Reasoning

The Court traced the sequence: orders granted under certificate of urgency, inter-partes hearing on 3rd November 2015, ruling referring the dispute to a Conciliator with a 45-day report, and no extension of the interim orders. Orders that no longer exist are not enforceable by contempt.

p. 3
02

Court's inherent jurisdiction over its own orders

Holding

The Court may act on its own motion or on application to compel observance of its process, but only where clear and subsisting orders exist.

Reasoning

Relying on Dondo and Nicholas Mahihu, the Court reaffirmed that orders are not to issue in vain and are subject to enforcement, but enforcement presupposes orders in motion, existing and alive, directed at the party alleged to be in breach.

p. 3
03

Whether the dispute should be transferred to Nakuru

Holding

No. The matter has been in the Nairobi court with the Respondents appearing since without seeking transfer, and a conciliator's report is due; the Respondents should not derail the process.

Reasoning

The Court held the transfer request misplaced given the respondents' continued appearance in Nairobi and the pendency of the conciliation referral and the main cause.

p. 4

Legal principles established

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  • The Court has inherent jurisdiction, exercisable on its own motion or on application, to enforce compliance with its orders and prevent abuse of its process.
  • Contempt can only attach to clear, unequivocal and subsisting orders; ex-parte interim orders not extended lapse and cannot support committal.

Court orders

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  1. 1.The application by the Claimant for leave to commence contempt proceedings is declined
  2. 2.Orders in force as at 3rd November 2015 are reinstated in the interim pending the parties taking a hearing date
  3. 3.Parties to be allocated a hearing date for the main cause on priority basis
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 15

Cases cited (6)

  • Wasted & Environment Management Association of Kenya (WEMA) versus Nairobi City County
    Petition No.210 of 2015
  • Raeli Tapsabei versus David Rono
    Misc.Appl. No.41 of 2013 (Kericho)
  • Nicholas Mahihu versus Ndima Tea Factory Ltd & Another
    Appeal No.101 of 2009
  • Republic versus Nairobi City County ex parte David Peter Ndambuki
    HCCC No.398 of 2012
  • KTGA versus Francis Atwoli & 5 Others
    [2012] eKLR
  • Rev. Madara Evans Okanga Dondo versus Housing Finance Co. of Kenya
    HCCC No.262 of 2005 (Nakuru)
Jurisdiction invoked
Inherent jurisdiction of the Court to prevent abuse of its orders; section 15 of the Employment and Labour Relations Court Act

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 Plantation & Agricultural Workers Union v Agricultural Employers Association & another [2016] KEELRC 1224 (KLR)", Case Analysis (2016). Application dated 1st February 2016 in ELRC Cause (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1224/eng@2016-03-10

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