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ELRCDismissedCause No 86 of 2017· [2019] KEELRC 2014 (KLR)

Kenya Private Universities Workers Union v Presbyterian University of East Africa [2019] KEELRC 2014 (KLR)

Employment and Labour Relations Court
22 March 2019
OMOnesmus N. Makau
4,427 words in judgment
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The bottom line

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A Kenyan union failed to hold a university in contempt because it couldn't prove the university had actually been served with the court order.

What this practically means

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Executive summary

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This Employment and Labour Relations Court judgment at Nairobi, delivered by Onesmus N. Makau, J on 22nd March 2019, determined two applications by a trade union claimant against a university respondent. The first application, dated 24th August 2017, sought committal of the respondent's officers for contempt of court orders issued on 6th February 2017, which had granted union officials access to employees and restrained victimization, together with orders to remit union dues of Kshs. 250,000 and reinstate two members. The court held that proof of contempt to the criminal standard requires proof of service of the order; since the only affidavit of service was sworn on 12.2.2018 and filed on 25.4.2018, long after the contempt application, doubt was cast on service and the benefit of doubt went to the respondent. The court also observed, obiter, that interlocutory orders restraining victimization do not insulate employees from lawful disciplinary action for a justifiable cause. The second application, dated 18th May 2018, sought to set aside the termination letter of the grievant Aaron Sailepu, the union's chapter chairman, and to secure his reinstatement with leave to amend the memorandum of claim. The court found the motion incompetent as it was brought by a non-party to the suit, and that subsequent leave to amend could not cure the defect; even if competent, the relief would amount to reinstatement or specific performance of a contract of service before trial on merits. Both applications were dismissed with costs to the respondent, and the grievant's claims were directed to await trial in the main suit.

Key legal issues

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01

Whether contempt of the order of 6th February 2017 was proved

Holding

The contempt application failed because proof of service of the order was doubtful; no affidavit of service was filed with the contempt application filed on 24.8.2017.

Reasoning

The court restated the definition of contempt from Black's Law Dictionary and Halsbury's Laws of England, and the rationale for punishing contempt as drawn from the Teachers Service Commission case. It then examined the record: the only affidavit of service was sworn on 12.2.2018 and filed on 25.4.2018, long after the contempt application of 24.8.2017. Since the burden of proving contempt out of court's precinct lies on the applicant to the standard of beyond reasonable doubt, the benefit of doubt went to the Respondent.

p. 6
02

Whether the 18.5.2018 motion seeking reinstatement of Aaron Sailepu was competent and merited

Holding

The motion was incompetent as it was brought by a non-party, and in any event the relief sought would amount to reinstatement or specific performance before trial.

Reasoning

The Respondent contended that the motion was brought by a stranger to the suit and introduced a new cause of action. The Claimant did not oppose but sought leave to amend, which the court held could not retroactively cure the defect. The court further held that a stay of a termination letter is a strange relief and granting it would reinstate the employee before the case was heard on merits, so the grievant's claims should await trial.

p. 6
03

Effect of an interlocutory order restraining victimization of union members

Holding

Such orders do not insulate employees from lawful disciplinary action for a justifiable cause under their contracts of employment.

Reasoning

The court observed, obiter, that even if service had been proved, it would not find contempt merely because a union member was dismissed. Employees remain bound by their contracts of employment. Contempt would only be found where an employee is dismissed in breach of an order barring dismissal on the very matter pending before the court.

p. 6

Legal principles established

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  • The burden of proving contempt of court committed out of the court's precinct lies with the applicant, and the standard of proof is beyond reasonable doubt.
  • An interlocutory injunction restraining victimization of employees does not insulate an employee from disciplinary action for a justifiable cause under the contract of employment.
  • An application brought by a non-party to a suit is incompetent and subsequent leave to amend the pleadings cannot cure that defect.
  • Courts will not order specific performance of a contract of employment or reinstate an employee before hearing the main suit on its merits.

Court orders

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  1. 1.The Notice of Motion dated 24.8.2017 for contempt is declined.
  2. 2.The Notice of Motion dated 18.5.2018 is found incompetent and is dismissed.
  3. 3.The claims in respect of Aaron Sailepu shall await determination on merits after hearing evidence at the trial.
  4. 4.Costs of both applications awarded to the Respondent.

Authorities

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Legislation

  • Contempt of Court ActSection 5(b)
  • Labour Relations Act, 2007Sections 13 and 56
  • Employment and Labour Relations Court (Practice Rules), 2015Rule 17
  • Employment and Labour Relations Court ActSections 3 and 12
  • Employment Act, 2007Sections 10(7), 41, 43, 44, 45, 46, 48, 50 and 51
  • Fair Administrative Action Act, 2015Sections 4 and 7
  • Constitution of Kenya, 2010Articles 19, 20, 21, 22, 23, 27, 28, 29(d)(f), 36, 41, 43, 47, 50, 159, 258 and 259
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A and 63

Cases cited (4)

  • Communication Workers Union Vs Safaricom Limited
    (2014) eKLR
  • Magdalene M. Ngea vs National Cereals and Produce Board
    [2017] eKLR
  • John Ngoko Isoe vs Nyasiongo Tea Factory co. Ltd
    [2017] eKLR
  • Teachers Service Commission Versus Kenya National Union of Teachers & 2 Others
    Petition No. 23 of 2013
Jurisdiction invoked
Section 5(b) of the Contempt of Court Act, 2016; Sections 13 and 56 of the Labour Relations Act, 2007; Sections 3 and 12 of the Employment and Labour Relations Court Act; ELRC (Practice) Rules 2015 Rule 17; Articles 19, 20, 21, 22, 23, 27, 28, 29, 36, 41, 43, 47, 50, 159, 258 and 259 of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Private Universities Workers Union v Presbyterian University of East Africa [2019] KEELRC 2014 (KLR)", Case Analysis (2019). Cause No 86 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2014/eng@2019-03-22

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