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ELRCPartially AllowedNot stated in the judgment (petition with Notice of Motion dated 9th July 2019)· [2019] KEELRC 595 (KLR)

Geofrey Lok Papa v Registrar of Trade Unions & 9 others [2019] KEELRC 595 (KLR)

Employment and Labour Relations Court
23 September 2019
2,479 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court found a union general secretary in contempt for ignoring orders, confirming that knowing about a court order counts even without personal service.

What this practically means

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Executive summary

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The petitioner, Geoffrey Lok Papa, moved the Employment and Labour Relations Court at Nakuru by Notice of Motion dated 9th July 2019 under Order 50 Rule 1 and section 5(1) of the Judicature Act, seeking leave to commence contempt proceedings against Francis Murage, the National General Secretary of the Kenya Building Construction, Timber and Furniture Employees Union, and his committal to civil jail for six months for disobeying judgment orders issued on 14th February 2019. Those orders nullified the Nakuru branch elections held on 24th January 2016, directed the 2nd respondent and office of General Secretary to take over branch affairs and conduct fresh elections within 60 days, and to clean the member register within 14 days. Murage resisted, arguing he was not named as a party in the petition, that the decree was never served on him personally, that no penal notice was served, that he was denied a fair hearing by being given only one day to reply contrary to Article 50, and that a Notice of Appeal and an application in Civil Appeal No. 220 of 2019 were pending. The court held that Murage, as holder of the office of the 2nd respondent who had opposed the petition by Replying Affidavit and was present at judgment, could not disclaim being a party. Applying the principle that knowledge of a court order supersedes personal service, and noting his Notice of Appeal demonstrated awareness, the court found Murage knowingly and wilfully disobeyed the orders and cited him for contempt. However, rather than commit him immediately, the court extended time by 14 days for compliance, required him to personally appear on 7th October 2019 to report on compliance, and awarded costs of the application to the petitioner. The contempt application was therefore partially allowed: the finding of contempt and costs were granted, but immediate committal was deferred.

Key legal issues

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01

Whether contempt lies against a person not named as a party in the suit

Holding

Mr Murage, as holder of the office of the 2nd respondent and having filed a Replying Affidavit and enjoyed legal representation in the petition, was properly before the court and cited for contempt

Reasoning

The 2nd respondent is an office held by Mr Murage under the union constitution, and the Labour Relations Act defines the general secretary as the authorised officer of a trade union. He opposed the petition as General Secretary, was present when judgment was delivered, and cannot hold the office only for convenience. His awareness of the orders is confirmed by the Notice of Appeal and his participation in the proceedings.

p. 4
02

Whether absence of a penal notice on the order defeats contempt proceedings

Holding

Knowledge of the order renders personal service and penal notice unnecessary

Reasoning

Relying on Teachers Service Commission v KNUT, Kenya Tea Growers Association v Atwoli and Basil Criticos v AG, the court held that where a party clearly acts showing knowledge of a court order, the strict requirement of personal service is dispensed with. Mr Murage filed a Notice of Appeal and applied to the Court of Appeal, confirming his awareness of the judgment and orders.

p. 3
03

What sanction follows wilful disobedience of court orders

Holding

Wilful disobedience must be punished, but the court deferred sanction to secure compliance with the underlying judgment

Reasoning

The court found that immediate removal of Mr Murage from office would derail the judgment orders directing him to take over branch affairs and hold fresh elections. It therefore kept him in office, extended time to comply by 14 days, and required a personal appearance to report on compliance, failing which a sanction would issue.

p. 4

Legal principles established

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  • Knowledge of a court order supersedes the strict requirement of personal service for contempt
  • An office holder who participated in proceedings as the office of the respondent cannot disclaim being a party for convenience

Court orders

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  1. 1.The court finds Mr Francis Murage in contempt of court vide orders issued on 14th February, 2019
  2. 2.Before sanction is issued, time is extended by fourteen days for compliance as directed on 14th February 2019
  3. 3.The 2nd respondent and office holder, Mr Francis Murage, shall personally return to court for his report on compliance on 7th October 2019
  4. 4.The 2nd respondent shall meet the costs of the application due to the petitioner

Authorities

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Legislation

  • Judicature Actsection 5(1)
  • Civil Procedure RulesOrder 50 Rule 1; Order 51
  • Constitution of Kenya, 2010Article 50
  • Labour Relations Actsection 2

Cases cited (9)

  • Republic versus Principal Secretary, Ministry of Defence, ex parte George Kariuki Waithaka
    [2018] eKLR
  • Chrispinus Ngayo Musundi versus the AG & another
    [2013] eKLR
  • Julius Morkong Chemtai versus Eliud Muringa Ngeywa & another
    [2013] eKLR
  • Ramadhan Salim versus Evans Maabi t/a Murphy Auctioneers & another
    [2016] eKLR
  • K. G. Patel & Sons Ltd versus John Kabukuru Gituro
    [2016] eKLR
  • Econet Wireless Ltd versus Minister for Information & Communication of Kenya & Another
    [2005] eKLR
  • Teachers Service Commission versus Kenya National Union of Teachers & 2 others
    [2013] eKLR
  • Kenya Tea Growers Association versus Francis Atwoli and 5 Others
    [2012] eKLR
  • Basil Criticos versus Attorney General and 8 Others
    [2012] eKLR
Jurisdiction invoked
Order 50 Rule 1 of the Civil Procedure Rules and section 5(1) of the Judicature 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, "Geofrey Lok Papa v Registrar of Trade Unions & 9 others [2019] KEELRC 595 (KLR)", Case Analysis (2019). Not stated in the judgment (petition with Notice of Motion dated 9th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/595/eng@2019-09-23

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