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ELRCDismissedNot stated in judgment· [2018] KEELRC 1790 (KLR)

Kenya Private Workers Union v Kenya Methodist University [2018] KEELRC 1790 (KLR)

Employment and Labour Relations Court
14 March 2018
2,592 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Two motions came before the Employment and Labour Relations Court at Nyeri: the claimant union's contempt application dated 19th September 2017 seeking to cite four university officials (the former vice chancellor, acting vice chancellor, deputy vice chancellor and human resource manager) for breaching orders of 24th and 30th May 2017 requiring access for union recruitment and deduction and remittance of union dues, with committal to jail and purging of contempt; and the respondent university's application dated 15th November 2017 seeking review of the 30th May 2017 orders on the ground of newly discovered evidence that the check-off forms were forged and that the claimant had no members. The alleged contemnors filed grounds of opposition asserting they were never personally served with the orders. The court held that court orders are edicts, not suggestions, and that a party which has elected to engage counsel cannot rely on absence of personal service. However, the contempt application failed because the claimant did not cite the respondent corporate body itself and did not clarify the roles of the individual officials in the disobedience, so they could not carry the respondent's cross. On the review application, the court was unable to make a definitive finding on the alleged forgeries, found the evidence insufficient, and held the respondent should have approached the Director of Criminal Investigations rather than ask the court to investigate. No proper basis for variation of the orders having been laid, the employer remained bound to deduct union dues. Both motions were dismissed with no order as to costs, and the parties were granted liberty to apply.

Key legal issues

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01

Whether contempt was established against the four alleged contemnors

Holding

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.

Reasoning

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.

p. 3
02

Whether personal service of the orders was a prerequisite to a contempt finding

Holding

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.

Reasoning

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.

p. 2
03

Whether the orders of 30th May 2017 on union dues should be reviewed on account of alleged forgery of check-off forms

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Dismissal of the Claimant's contempt of court application dated 19th September 2017
  2. 2.Dismissal of the Respondent's notice of motion dated 15th November 2017 seeking review
  3. 3.No order as to costs
  4. 4.Parties at liberty to apply

Authorities

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Legislation

  • Contempt of Court ActSections 3, 4 and 5(b)
  • Labour Relations Act, 2007Sections 13, 48 and 56
  • Employment and Labour Relations Court ActSections 3 and 16
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17 and Rule 33(1), (2), (3) and (4)

Cases cited (2)

  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Hakika Transport Services Limited v Kenya Long Distance Truck Drivers & Allied Workers Union
    [2015] eKLR
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

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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 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.