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ELRCDismissedELRC Cause (notice of motion dated 30.06.2016, filed 01.07.2016)· [2019] KEELRC 1933 (KLR)

Kenya Tea Growers Association v Kenya Plantations and Agricultural Workers Union [2019] KEELRC 1933 (KLR)

Employment and Labour Relations Court
22 March 2019
4,453 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a contempt claim against a trade union over a strike because the employer couldn't prove officials actually knew the court order's terms.

What this practically means

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Executive summary

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The claimant, an employers' organisation, moved the Court by notice of motion dated 30.06.2016 seeking contempt findings against the respondent union and four named officials for disobeying orders issued by Nduma J on 27.06.2016, which restrained the union, its officials and members from continuing or inciting a strike over outstanding CBA 2014-2015 issues and directed striking employees to return to work. The claimant alleged service on the union's counsel and branch officials, publication in the press, and continued strike action on 28th and 29th June 2016, including destruction of property at James Finlay, Kericho. The respondent denied calling the strike, asserted the strike was spontaneous, and pointed to a return to work formula signed on 04.07.2016. The Court framed two issues: whether personal service or knowledge of the order was proved, and whether contempt was established. It held that the presumption that an advocate served with an order would inform named officials of its terms cannot found culpability; no affidavit of service proved service on branch officials; and media reports postdating the alleged contempt could not establish knowledge of the order's terms. On the merits, the order was prohibitory and the return-to-work direction was aimed at employees, not officials; the strike was spontaneous and no strike notice issued by the union was shown. The Court further held that, absent express duties imposed on officials or members, contempt for breach of an order against a trade union should be enforced against the union as a body corporate, and that contempt proceedings are secondary to the statutory disciplinary remedies for unprotected strikes under section 80 of the Labour Relations Act. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Personal service and knowledge of the order

Holding

A presumption that an advocate served with the order informed the named officials of its terms cannot found culpability; service on branch officials was not proved by affidavit of service; media reports published 29th-30th June could not prove knowledge of terms for contempt occurring on 28th-29th June

Reasoning

The Court required service or knowledge of the order's terms to the higher standard applicable in contempt. The process server's evidence showed consultation with Muli Advocate about the fact of service, not the terms. No affidavit of service established service on branch officials. Media reports postdated the alleged contempt and their accuracy as to the order's terms was uncertain.

p. 2
02

Whether contempt was established on 28th and 29th June 2016

Holding

No - nothing established showing the cited persons or the respondent did anything in disobedience of the order; the strike was instantaneous and not called by the union; destruction of property was a matter for criminal proceedings or statutory remedies, not contempt

Reasoning

The order was prohibitory, requiring restraint by the officials, and the direction to return to work was directed at employees individually. There was no strike notice issued by the union, so the officials were not in control of their members. Property damage claims lay under section 19(1)(b) of the Employment Act and criminal law, not contempt.

p. 3
03

Proper respondent to contempt for breaches by union officials or members

Holding

Liability should attach to the trade union as a body corporate unless the order expressly imposes duties on officials or members; sequestration against the union is a remedy of last resort

Reasoning

Under section 21 of the Labour Relations Act a union is a body corporate with capacity to sue and be sued. Officials acting within official capacities bind the union, so contempt should be directed at the union itself. Sequestration against the union was available as an ultimate measure but is rarely invoked.

p. 4

Legal principles established

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  • Contempt proceedings require proof to a standard higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
  • Unless the order alleged to be disobeyed expressly imposes a duty on union officials or members, disobedience is enforced against the trade union as a body corporate
  • Service on an advocate at the union's office constitutes adequate service on the union as a corporate body
  • For unprotected strikes, the employer's primary remedy is statutory disciplinary action under section 80 of the Labour Relations Act, with contempt proceedings only in addition and secondary

Court orders

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  1. 1.The application dated 30.06.2016 and filed on 01.07.2016 is dismissed
  2. 2.Each party to bear own costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 63(c)
  • Civil Procedure Rules 2010Order 40 Rules 3(1)(2)(3)
  • Employment and Labour Relations Court Actsection 12
  • Labour Relations Actsection 80
  • Labour Relations Act, 2007section 21
  • Labour Relations Act, 2007section 80
  • Employment Act, 2007sections 19(1)(b) and 17(1)
  • ConstitutionArticles 47 and 50(1)

Cases cited (7)

  • Justus Wanjala Kisiangani and 2 Others v City Council of Nairobi and 3 Others
    [2008] eKLR
  • Kenya Tourist Development Corporation v Kenya National Capital Corporation & Another
    High Court Civil Appeal No. 6776 of 1992
  • Kenya Tea Growers Association v Francis Atwoli & 5 Others
    [2012] eKLR
  • Mutika v Baharini Farm Limited
    (1985) KLR 229
  • Kenya Plantation and Agricultural Workers Union v Roseto Flowers
    [2013] eKLR
  • Dr. Fredrick Njeru Kamunde v Tharaka Nithi County Government and 2 Others
    [2016] eKLR
  • Clarke & Others v Chad Burn & Others
    (1985) ALL ER 211
Jurisdiction invoked
section 12 of the Employment and Labour Relations Court Act and section 63(c) of the Civil Procedure Act, Order 40 Rules 3(1)(2)(3) of the Civil Procedure Rules 2010

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 Tea Growers Association v Kenya Plantations and Agricultural Workers Union [2019] KEELRC 1933 (KLR)", Case Analysis (2019). ELRC Cause (notice of motion dated 30.06.2016, filed 01.07.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1933/eng@2019-03-22

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