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ELRCDismissedNotice of Motion Application dated 17th July, 2017 (arising from RCA No. 36 of 2015)· [2018] KEELRC 705 (KLR)

Kenya Aviation Workers Union v Kenya Airports Authority [2018] KEELRC 705 (KLR)

Employment and Labour Relations Court
23 October 2018
HWHellen Wasilwa
4,084 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 punish airport officials for defying a union order, finding the breach was not deliberate because confusion over union membership made compliance practically impossible.

What this practically means

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Executive summary

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The Claimant, a trade union, filed a Notice of Motion dated 17th July 2017 under Order 51(1) of the Civil Procedure Rules, Section 5 of the Judicature Act and the Contempt of Court Act seeking leave to institute contempt proceedings against Jonny Anderson (Managing Director/CEO) and Dr. Elizabeth Nekesa Kalei (General Manager, Human Resource Development) of the Respondent, a statutory body, for defying orders issued on 14th March 2017 restraining denial of Grade 5 staff benefits under a CBA registered on 12th February 2015. The Claimant sought declarations of contempt, committal, payment of arrears of about Kshs.288,078,173 with 7% interest, and general damages of Kshs.10,000,000. The Respondent opposed, explaining that compliance was inhibited by rival union disputes, the Claimant's deregistration between November 2016 and February 2017, a Supreme Court order until April 2017, an audit revealing invalid check-off entries, and mass employee objections; it ultimately paid union dues of Kshs.603,193 for August and September 2017. Relying on authorities on the standard of proof in contempt and statutory pre-requisites including Section 30 of the Contempt of Court Act, the Respondent argued the application was defective. Wasilwa, J found that given the confusion over membership and the rival union dispute until the Supreme Court's decision of 7th April 2017, implementation of the order was not workable and the Respondent did not deliberately disobey it. The application was dismissed, with the Claimant directed to conduct fresh recruitment and submit fresh check-off forms, and costs were awarded in the cause.

Key legal issues

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01

Whether the Respondent deliberately disobeyed the Court's orders of 14th March 2017

Holding

No deliberate disobedience was established; rival union disputes, deregistration of the Claimant, the Supreme Court's pronouncement and employee objections made compliance unworkable

Reasoning

The Court noted that several employees disputed membership of the Claimant union and that the Claimant and a rival union were in dispute until the Supreme Court settled the position on 7th April 2017. In those circumstances deductions of union dues could not practically be effected. The Court therefore found no wilful breach and declined to commit the cited officers.

p. 5
02

Remedies for resolving the check-off dispute

Holding

The Applicant was directed to recruit afresh and submit fresh check off forms rather than pursue contempt

Reasoning

Having found no contempt, the Court held that the proper course was for the union to conduct fresh recruitment of willing members and submit fresh check off forms, bearing in mind employees who had not ceded their membership. The application therefore failed.

p. 6

Legal principles established

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  • Contempt cannot lie where the contemnor's failure to comply was not deliberate and where circumstances made implementation of the order unworkable

Court orders

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  1. 1.The Application (Notice of Motion dated 17th July, 2017) was dismissed
  2. 2.The Applicant was directed to proceed with fresh recruitment of members wishing to join the union and submit fresh check off forms for deduction of union dues
  3. 3.Costs to be in the cause
Jurisdiction invoked
Order 51(1) of the Civil Procedure Rules; Section 5 of the Judicature Act Cap 8; Sections 1A, 3A and 63 of the Civil Procedure Act Cap 21; Sections 4, 5, 23, 7 of the Contempt of 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 Aviation Workers Union v Kenya Airports Authority [2018] KEELRC 705 (KLR)", Case Analysis (2018). Notice of Motion Application dated 17th July, 2017 (arising from RCA No. 36 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/705/eng@2018-10-23

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