Kenya National Union of Nurses v Cabinet Secretary for East Africa Community Labour and Social Protection [2021] KEELRC 674 (KLR)
The bottom line
#Kenya's Employment Court found the Labour Cabinet Secretary guilty of contempt for ignoring a court order to sign an agency fee gazette notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had knowledge of the court order despite absence of personal service
Service on the offices of the respondent and the Attorney General, and the appearance of state counsel when the order was made, sufficed; knowledge supersedes personal service
The court applied Rule 81.8 of the English CPR and Kenyan authorities holding that an advocate's presence in court when orders issue obliges reporting to the client. The order was extracted and served on the AG's and respondent's offices on 9.12.2019 per affidavit of service. The respondent was therefore aware of the order and its terms despite no personal service.
Whether the respondent's failure to comply was deliberate
Yes. The claimed lacuna in the law was rejected; section 49 of the Labour Relations Act provides a sufficient procedure and the respondent had not appealed or sought review of the order
The court held section 49 LRA gives a detailed procedure for agency fee orders, so no regulatory gap justified non-compliance. The respondent neither appealed nor reviewed the order and had to obey it until discharged. The court expressly disagreed with Nduma J's decision in the Ex parte Kenya Union of Secondary Schools Non-Teaching Staff case that lack of Regulations excused wilful disregard.
Threshold for punishing contempt
Three elements: proof of personal service or knowledge; proof of violation; and proof the violation was deliberate
Relying on the Supreme Court in Republic v Ahmad Abolfathi Mohammed, the court stressed the committal power must be exercised with utmost care and only as a last resort, requiring proof that the contemnor wilfully flouted the order. All three elements were found satisfied against the respondent.
Legal principles established
#- Knowledge of a court order supersedes proof of personal service for contempt purposes
- A person against whom a court order is made must obey it until discharged; inability to comply must be lawfully justified
- Court orders are meant to be complied with strictly
Court orders
#- 1.The Honourable Cabinet Secretary, Mr. Simon K Chelugui is cited for contempt of the court's order dated 12.11.2019 by failing to sign the Gazette notice for an order to deduct Agency fees in favour of the claimant under section 49 of the Labour Relations Act
- 2.The case to be mentioned online before the successor judge in Court 3 for mitigation and sentencing on 11.11.2021 at 9.00 or soon thereafter, the respondent at liberty to attend in person or through counsel
- 3.The claimant is awarded costs of the application
- Jurisdiction invoked
- Original Employment and Labour Relations Court jurisdiction; contempt of orders of the court under the Labour Relations Act, section 49
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Cabinet Secretary for East Africa Community Labour and Social Protection [2021] KEELRC 674 (KLR)", Case Analysis (2021). Notice of motion dated 29.9.2020 in the principal suit filed 5.4.2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/674/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.