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ELRCOtherNot stated in judgment (contempt application dated 23rd September, 2016; related to ruling and orders of 14th June, 2013)· [2017] KEELRC 1964 (KLR)

Nicky Njuguna & 3 others v Registrar of Trade Unions & 2 others [2017] KEELRC 1964 (KLR)

Employment and Labour Relations Court
9 February 2017
1,756 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to jail the Registrar of Trade Unions for contempt because the original court orders never clearly stated who had to comply.

What this practically means

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Executive summary

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The Appellants, led by Nicky Njuguna, moved the Employment and Labour Relations Court by Notice of Motion dated 23rd September, 2016 seeking to cite the Registrar of Trade Unions and the Attorney General for contempt of the court's orders of 14th June, 2013, which declared section 3(b) of the Labour Relations Act and section 47(3)(e) of the National Police Service Act unconstitutional for barring police officers from trade union activities, with a four-month stay for the state to amend the statutory provisions. The Appellants alleged that despite service, the Registrar refused to issue a certificate under section 12 of the Labour Relations Act for the Kenya Police Union and the Attorney General failed to amend section 47(3)(e), and sought committal to civil jail for six months and fines of Kshs.500,000 each. The Respondents opposed, arguing the orders lacked clarity as to who was to execute them, that the power to legislate lies with the National Assembly under Article 94, and that the underlying judgment was on appeal in Civil Appeal No.251 of 2014. The court held contempt undermines the rule of law and compliance is required pending appeal, but found the order of 14th June, 2013 was directed at the state generally without specifying the responsible organ of state, making it unjust to cite the Respondents. Observing that the orders were made by Onesmus Makau, J, the court declined to determine the contempt and placed the file before the Presiding Judge for transmission to that judge for directions. No costs order was made.

Key legal issues

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01

Whether the Respondents could be cited for contempt of the declaratory orders of 14th June, 2013

Holding

The court declined to find contempt, holding that the order directed the state generally to amend statutory provisions but did not specify which organ of state was responsible, and referred the file to the judge who issued the original orders

Reasoning

The orders of 14th June, 2013 were declaratory, with a four-month stay for the state to amend the statutory provisions. The court held the order was directed at the state generally but lacked clarity on which organ of state bore responsibility for enforcement. Since contempt requires a clear order directed at a specific person, and the present judge was not the one who made the original orders, it was appropriate to place the file before Onesmus Makau, J for directions rather than determine contempt.

p. 3
02

Whether contempt proceedings could proceed while an appeal against the underlying judgment is pending

Holding

The court noted the matter had proceeded to the Court of Appeal but the parties had not disclosed the nature of the pending matters; this did not bar the application as no stay of execution had been shown, but the file was nonetheless referred for directions

Reasoning

The Appellants submitted there was an appeal pending challenging the judgment but no stay of execution. The court held that compliance with orders is required before challenge, but noted that the parties had not disclosed the nature of the matters pending before the Court of Appeal. It stopped short of ruling on the contempt and instead referred the file to the Presiding Judge for transmission to Onesmus Makau, J, who made the original orders.

p. 4

Legal principles established

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  • Where an order of the court is issued, compliance is required before a party can challenge its contents or appeal against it, as contempt undermines the rule of law
  • As a general rule a contemnor has no right of audience in any court of law unless punished or the contempt is purged, though courts may depart from the rule in unique circumstances

Court orders

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  1. 1.The file placed before the Presiding Judge, Employment and Labour Relations Court, on 12th April, 2017 for directions on transmission of the file to Onesmus Makau, J for his consideration of the matter(s) pending

Authorities

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Legislation

  • Labour Relations Actsection 12
  • Labour Relations Actsection 3(b)
  • National Police Service Act (No. 11A)section 47(3)(e)
  • National Police Service Actsection 47(3)(g)
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 24
  • Constitution of KenyaArticle 94

Cases cited (7)

  • Shimmers Plaza Limited versus National Bank of Kenya Limited
    [2015] eKLR
  • Gordon versus Gordon
    [1945] 1 All ER
  • Mutirika versus Baharin Farm Ltd
    [1985] EA
  • Lucy Wangui Gachara versus Minudi Okemba Lore
    Civil Appeal No.4 of 2015 (Malindi)
  • Shah versus Shah
    [1989] KLR 220
  • Kenya Tea Growers Association versus Francis Atwoli
    [2012] eKLR
  • Registrar of Trade Unions versus Nicky Njuguna & 5 Others
    Civil Appeal No.251 of 2014
Jurisdiction invoked
Inherent contempt jurisdiction of the Employment and Labour Relations Court over disobedience of its own orders of 14th June, 2013; no specific constitutional or statutory provision invoked for jurisdiction

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, "Nicky Njuguna & 3 others v Registrar of Trade Unions & 2 others [2017] KEELRC 1964 (KLR)", Case Analysis (2017). Not stated in judgment (contempt application dated 23rd September, 2016; related to ruling and orders of 14th June, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1964/eng@2017-02-09

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