Kenya Private Workers Union v Kenya Methodist University [2018] KEELRC 1790 (KLR)
The bottom line
#The Employment Court dismissed both sides' applications: the union's contempt case failed on technical framing, but the university remains bound to deduct union dues.
What this practically means
#Executive summary
#Key legal issues
#Whether contempt was established against the four alleged contemnors
The contempt application against the Respondent's officials failed; the alleged contemnors were not properly roped in because the Claimant did not clarify their roles in the disobedience, and the Respondent itself escaped censure because the Claimant forgot to cite it.
The court acknowledged that disobedience of court orders must be punished, but found defects in how the contempt application was framed: the Respondent, a corporate body, was not cited as a contemnor, and the individual officials' roles in the disobedience were never clarified. The court signaled that the Respondent was on notice that its orders were not decorative pieces of paper, but declined to commit the officials. The officials could not carry the Respondent's cross.
Whether personal service of the orders was a prerequisite to a contempt finding
Having elected to engage counsel, the Respondent could not rely on lack of personal service as a defence; the objection was rejected as a loophole for disobedience.
Counsel for the alleged contemnors argued, citing Shimmers Plaza Ltd v National Bank of Kenya Ltd, that personal service and full knowledge of the orders were required given the high threshold involving loss of personal liberty. The court did not apply that authority against the Claimant: since the Respondent had retained counsel in the matter, it could not claim ignorance of the orders. However, the contempt application still failed on framing grounds rather than on service.
Whether the orders of 30th May 2017 on union dues should be reviewed on account of alleged forgery of check-off forms
The review application was dismissed. The evidence on forgery was insufficient and the Respondent should have pursued criminal investigations rather than ask the court to investigate.
The Respondent filed affidavits and emails from staff disavowing signatures on the check-off forms, alleging forgery and insufficient membership. The court could not discern the signatures and made no definitive finding on forgery, while stating it would not countenance illegality from forged signatures. The evidentiary material was inadequate (an email address bearing no signature for comparison). Since no proper basis for variation was laid, the deductions order stood and the review failed.
Legal principles established
#- Court orders must be obeyed; a party cannot evade contempt by claiming lack of personal service where it has elected to engage counsel in the matter
- A party aggrieved by a court order must promptly move the court for stay, review or reversal rather than disobey it
- An employer remains bound to deduct union dues unless a proper basis for variation of the court order is laid
Court orders
#- 1.Dismissal of the Claimant's contempt of court application dated 19th September 2017
- 2.Dismissal of the Respondent's notice of motion dated 15th November 2017 seeking review
- 3.No order as to costs
- 4.Parties at liberty to apply
- Jurisdiction invoked
- Sections 3 and 16 of the Employment and Labour Relations Court Act; Section 5(b) of the Contempt of Court Act 2016; Sections 13 and 56 of the Labour Relations Act 2007; Employment and Labour Relations Court (Procedure) Rules 2016 (Rules 17 and 33)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Private Workers Union v Kenya Methodist University [2018] KEELRC 1790 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1790/eng@2018-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.