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ELRCDismissedNot stated in the judgment· [2018] KEELRC 2505 (KLR)

Kenya Concrete Structral Ceramic Tiles Wood Ply & Interior Designs Workers Union v Laxmanbhai Construction Ltd & another [2018] KEELRC 2505 (KLR)

Employment and Labour Relations Court
19 January 2018
MNMathews N. NdumaMOMaureen Onyango
1,113 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to jail company directors over union dues, ruling that honest mistakes quickly corrected are not contempt of court.

What this practically means

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Executive summary

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The Claimant union moved the court by Notice of Motion seeking the arrest and committal to jail, or a fine, of the Respondent's seven Directors for contempt of court orders issued on 21st October 2016 and 4th April 2017. Those orders required the Respondent to deduct and remit union dues for all the Claimant's members per check-off forms and prohibited double deductions or remittance to third parties, including the Interested Party union. The Claimant alleged partial payments, double deductions and an outstanding sum of Kshs.5,054,364. The Respondent, through a replying affidavit of Charles Mochoga, asserted full compliance, producing a compliance report of 23rd February 2017 covering April 2016 to February 2017, and explained that double deductions occurred because some employees belonged to both unions. The Interested Party, the recognized union with a valid CBA, asserted its entitlement to dues for its members and agency fees. The court framed the determination under Section 4 of the Contempt of Court Act, 2016, and applied Mutitika v Baharini Farm Limited, holding that the standard of proof in contempt is higher than the balance of probabilities but short of proof beyond reasonable doubt. The court found the Respondent had substantially complied and that isolated errors were not willful and were corrected promptly. The Claimant failed to discharge the heightened onus; the application was dismissed with costs.

Key legal issues

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01

Whether the Respondent was in willful disobedience of the court orders

Holding

No - the Respondent substantially complied with the orders and any double, under or non-deductions were not willful and were promptly corrected.

Reasoning

The court examined the compliance report filed on 23rd February 2017, which demonstrated deduction and remittance of union dues from April 2016 to February 2017. Isolated double deductions arose because some employees belonged to both unions. Errors were corrected at the earliest opportunity and there was no intent to defy the orders or bring the court into disrepute.

p. 3
02

The applicable standard of proof in civil contempt proceedings

Holding

The standard is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt, following Mutitika v Baharini Farm Limited.

Reasoning

Relying on Mutitika v Baharini Farm Limited, which quoted Lord Denning MR in Re Bramblevale Ltd, the court held that although contempt is an offence of a criminal character, the criminal standard of proof beyond reasonable doubt should not be extended to contempt proceedings, which are quasi-criminal; a heightened civil standard applies.

p. 3
03

Whether the Claimant discharged its burden of proof

Holding

No - the Claimant failed to identify individual employees affected and did not meet the heightened standard.

Reasoning

The Respondent contended, and the court accepted, that the Claimant could not identify which individual employees the Respondent failed to deduct and remit dues for. Without such proof to the heightened standard, committal could not issue, and the application was dismissed with costs.

p. 3

Legal principles established

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  • The standard of proof in contempt proceedings is higher than proof on the balance of probabilities but lower than proof beyond reasonable doubt.
  • Civil contempt means willful disobedience of a judgment, decree, direction, order or other process of a court, or willful breach of an undertaking given to a court.
  • Mistaken deductions corrected at the earliest opportunity do not amount to willful disobedience attracting committal.

Court orders

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  1. 1.The application for contempt is dismissed

Authorities

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Legislation

  • Contempt of Court ActSection 4(1)(a)

Cases cited (2)

  • Mutitika v Baharini Farm Limited
  • Re Bramblevale Ltd
    [1969] 3 All ER 1062
Jurisdiction invoked
Section 4 of the Contempt of Court Act, 2016 (civil contempt jurisdiction of the Court)

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 Concrete Structral Ceramic Tiles Wood Ply & Interior Designs Workers Union v Laxmanbhai Construction Ltd & another [2018] KEELRC 2505 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2505/eng@2018-01-19

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