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ELRCPartially AllowedNotice of motion dated 29.9.2020 in the principal suit filed 5.4.2019· [2021] KEELRC 674 (KLR)

Kenya National Union of Nurses v Cabinet Secretary for East Africa Community Labour and Social Protection [2021] KEELRC 674 (KLR)

Employment and Labour Relations Court
22 October 2021
3,355 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant union sued on 5.4.2019 seeking orders compelling the Cabinet Secretary for East Africa, Labour and Social Protection to issue gazette notices authorising deduction of Kshs.650 agency fees from employees of AIC Kijabe Mission Hospital and Moi Teaching and Referral Hospital under CBAs registered in RCA Nos. 99 and 98 of 2018, plus a declaration of violation of Article 47, the Fair Administrative Actions Act and section 49 of the Labour Relations Act. On 12.11.2019 the court directed the respondent to sign the gazette notice within 14 days, but he failed to comply. The union brought a notice of motion dated 29.9.2020 seeking leave to commence contempt proceedings against Cabinet Secretary Simon Chelugui. The respondent opposed, arguing lack of personal service, absence of deliberate non-compliance, and a supposed lacuna in the law pending development of Labour Relations (Trade Union Dues and Agency Fees) Regulations 2020. The court identified the threshold for contempt as proof of personal service or knowledge, proof of violation, and proof of deliberateness. It held that knowledge supersedes personal service: state counsel appeared when the order was made and the extracted order was served on the offices of the respondent and the Attorney General on 9.12.2019. The court held section 49 of the Labour Relations Act provides a sufficient procedure, so no regulatory gap justified non-compliance, and expressly disagreed with Nduma J's contrary decision in the Ex parte Kenya Union of Secondary Schools Non-Teaching Staff case. The respondent was cited for contempt; mitigation and sentencing were deferred to 11.11.2021 before the successor judge in Nairobi, with costs of the application awarded to the claimant. Delivered online at Nakuru on 22.10.2021 by Onesmus N. Makau J.

Key legal issues

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01

Whether the respondent had knowledge of the court order despite absence of personal service

Holding

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

Reasoning

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.

p. 3
02

Whether the respondent's failure to comply was deliberate

Holding

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

Reasoning

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.

p. 4
03

Threshold for punishing contempt

Holding

Three elements: proof of personal service or knowledge; proof of violation; and proof the violation was deliberate

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 3.The claimant is awarded costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Fair Administrative Actions ActPart II, sections 3 & 4
  • Labour Relations Actsections 48, 49
  • English Civil Procedure (Amendment No.2) Rules 2012Rules 81.5, 81.8
  • ELRC Procedure RulesRule 28(3)

Cases cited (13)

  • Republic v The Kenya School of Law & others
    [2015] eKLR
  • Wildlife Lodges Ltd v County Council of Narok & another
    [2005] 2 EA 344 (HCK)
  • Council of Governors v Seth Panyako & others
    [2019] eKLR
  • Koinange Investiments & Development Ltd v Robert Nelson Ngethe
    [2014] eKLR
  • Republic v Cabinet Secretary, Ministry of Labour & Social Protection & another, Ex parte Kenya Union of Secondary Schools Non-Teaching Staff
    [2019] eKLR
  • Samuel M.N. Mweru & National Land Commission & 2 others
    [2020] eKLR
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Basil Criticos v Attorney General & 4 others
    [2012] e-KLR
  • Republic v Principal Secretary, Ministry of Defence Ex parte George Kariuki Waithaka
    [2019] eKLR
  • Republic v Ahmad Abolfathi Mohammed & another
    [2018] eKLR
  • Teachers Service Commission v Kenya Union of Teachers & another
    [2013] eKLR
  • Refrigerator & Kitchen utensils Ltd v Gulabchand Shah & others
    Civil Application No. Nai 39 of 1990
  • Fred Matiang'i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others
    [2018] eKLR
Jurisdiction invoked
Original Employment and Labour Relations Court jurisdiction; contempt of orders of the court under the Labour Relations Act, section 49

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 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.