Kenya National Union of Teachers (KNUT) v Teachers Service Commission & another [2020] KEELRC 538 (KLR)
The bottom line
#Kenya's Employment Court refused to jail the TSC boss for contempt because KNUT failed to prove the employer deliberately ignored its orders.
What this practically means
#Executive summary
#Key legal issues
#Whether service and knowledge of the orders was proved
Service on the respondent on 19th August 2019 was not contested; the alleged contemnor was not personally served, but knowledge of the order suffices for the respondent
The court noted it was not contested that the respondent was served with the orders on 19th August 2019, three days after issuance. The alleged contemnor was never personally served. The petitioner relied on authority that knowledge of an order dispenses with personal service, but the court did not find the alleged contemnor had knowledge warranting committal.
Whether the disobedience was wilful
Non-deduction of August 2019 dues was explained by payroll processed before service; later shortfalls were attributed to system/technical hitches; wilful disobedience was not established to the required standard
The court accepted the respondent's explanation that the August 2019 payroll had been fully processed and dispatched before the ex parte orders were served, and that the respondent's failure was due to a systems error, not intent. The December 2019 failure was attributed to a recurring technical hitch. Contempt requires wilful, deliberate disobedience, which was not demonstrated.
Whether the monetary and payroll-extract prayers could be granted on application
The Kshs.599,082,312 claim is a liquidated claim for substantive hearing and is not anchored on the pleadings or orders; the payroll extract prayer was a new pleading
The court agreed with the respondent that the claim for Kshs.599,082,312 is a substantive cause of action not pleaded in the petition and not arising from the orders of 16th August 2019. The by-product/membership prayer was similarly a new pleading. Both could not be determined on a contempt application.
Legal principles established
#- To establish contempt there must be valid court orders, effective service or knowledge of them, and disobedience
- Compliance with an ex parte order is judged from the time of service; a party cannot be held in contempt for failing to obey an order of which it had no notice
Court orders
#- 1.The Application dated 15th January 2020 is dismissed
- 2.Costs of the Application shall abide the outcome of the Petition
- Jurisdiction invoked
- Contempt jurisdiction of the Employment and Labour Relations Court under its power to enforce its orders (Article 162(2) and 165(2) jurisdiction; Supreme Court's power to punish for contempt as discussed in Board of Governors Moi High School Kabarak v Malcolm Bell)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Teachers (KNUT) v Teachers Service Commission & another [2020] KEELRC 538 (KLR)", Case Analysis (2020). Notice of Motion dated 15th January, 2020 (contempt application in Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/538/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.