Bakery Confectionary Food Manufacturing and Allied Workers Union (Kenya) v Monking Bakers Limited [2020] KEELRC 1027 (KLR)
The bottom line
#A Kenyan court refused to jail company directors accused of disobeying orders protecting union members, because the union could not prove the breach to the strict standard contempt demands.
What this practically means
#Executive summary
#Key legal issues
#Elements and standard of proof in civil contempt proceedings
The Claimant had to prove beyond peradventure the four elements of contempt - clear and unambiguous order binding on the respondent, knowledge or notice, breach, and deliberateness - to a standard higher than a balance of probabilities, and failed to do so
The court adopted the four North Tetu elements, noting clarity of the orders and service were uncontroverted, but the alleged breach rested on sharply divergent factual accounts. Because contempt is quasi-criminal and touches liberty, guilt must be proved with strictness consistent with the gravity of the charge, per Gatharia K. Mutikika. On the conflicting affidavits the court could not determine the truth, so the applicant failed to discharge its burden.
Whether the Respondent breached the orders by denying employees access to the workplace and coercing them to recant union membership
No breach was proved; the accounts of denied access, the meetings and the alleged coerced letters were matters of fact contested by both sides and incapable of resolution on affidavit in contempt proceedings
The Claimant relied on supporting affidavits of employees denied access on 16th and 26th November, 2019 and coerced to sign letters disowning the union; the Respondent deposed that employees simply refused to report back to work and that the Masii Police Station meeting was chosen by the employees as neutral ground. These divergent accounts could only be tested at the hearing of the main suit, so no cogent evidence of breach was presented.
Burden of proof lies on the party averring contempt
The Claimant, as the applicant averring contempt, bore the burden of persuading the court and failed to discharge it
Applying the evidentiary rule that he who avers must prove, the court found itself unable to tell whether the applicant or the respondent was telling the truth on the affidavit material. That inability itself meant the Claimant had not proved contempt to the requisite standard, and the application for citation and committal of the Respondent's directors failed in its entirety.
Legal principles established
#- To establish civil contempt, the applicant must prove that the terms of the order were clear and unambiguous and binding, that the respondent had knowledge or proper notice of the terms, that the respondent acted in breach, and that the conduct was deliberate
- Contempt must be proved to a standard higher than the balance of probabilities, almost but not exactly beyond reasonable doubt, because contempt is quasi-criminal and engages the liberty of the subject
- The applicant in contempt proceedings bears the burden of proof; where the court cannot tell which account is true, the applicant has failed to discharge that burden
Court orders
#- 1.The notice of motion application dated 9th December, 2019 is dismissed
- 2.No orders for costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction; application made under Section 5(1) of the Judicature Act Cap 8 and Order 52 Rule 3 of the Supreme Court of England 1965 and all other enabling provisions of the law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery Confectionary Food Manufacturing and Allied Workers Union (Kenya) v Monking Bakers Limited [2020] KEELRC 1027 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of motion dated 9th December, 2019 in a Memorandum of Claim dated 11th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1027/eng@2020-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.