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ELRCDismissedCause No. 23 of 2020· [2021] KEELRC 817 (KLR)

Kenya Union of Sugar Plantation & Allied Workers v Kibos Sugar and Allied Industries Limited [2021] KEELRC 817 (KLR)

Employment and Labour Relations Court
8 October 2021
RSRadido Stephen
1,382 words in judgment
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The bottom line

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Kenya's Employment Court refused to punish Kibos Sugar for skipping a reinstatement order because the workers had already been replaced, making disobedience non-wilful.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Kisumu (Radido Stephen, J) determined a contempt application by the Kenya Union of Sugar Plantation & Allied Workers against Kibos Sugar & Allied Industries Limited. The Union alleged that the Respondent disobeyed orders of 11 December 2020 directing unconditional reinstatement of 5 Grievants and the filing of an affidavit of compliance within 5 days, and sought an arrest warrant against the Respondent's Human Resource Manager, Mr David Odongo Moli, with detention for up to six months. The Respondent filed its own Motion seeking a stay and an alternative order in lieu of reinstatement, contending the Grievants had already been replaced in May, July and October 2020, making reinstatement impracticable. The Court set out four ingredients of contempt - existence of an order, knowledge or service, breach, and wilfulness - and the higher-than-balance standard of proof. While the first three ingredients were undisputed, the Court found the breach was not wilful: the Respondent's records showed the Grievants had been replaced before the orders were made, and the Union filed no rebuttal. The Court was satisfied the facts on the ground had changed such that interlocutory reinstatement orders ought not to have been granted. The Union's Motion was declined with no order on costs, and the Court urged the parties, given the animus between them, to pursue industrial good faith.

Key legal issues

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01

Whether the Respondent's failure to reinstate the Grievants and file an affidavit of compliance amounted to contempt

Holding

No contempt was established because the breach was not wilful; the Grievants had been replaced before the reinstatement orders were made and the Union did not rebut that evidence

Reasoning

The Court applied the four ingredients of contempt. The existence of the order, knowledge and breach were undisputed. The Respondent filed records showing the Grievants were replaced in May, July and October 2020, and the Union offered no rebuttal. The Court was satisfied facts on the ground had changed such that reinstatement orders ought not to have been granted at the interlocutory stage, so no wilful disobedience was found.

p. 3
02

Whether the Respondent's Motion for stay and alternative orders in lieu of reinstatement should be granted

Holding

The Court did not grant the Motion as such; it treated it as part of the response to the contempt application and declined the Union's motion outright

Reasoning

The Court indicated it would consider the Respondent's Motion as part of the response to the contempt motion. Having found no contempt, the Court declined the Union's Motion and made no order on costs, effectively accepting that changed circumstances made reinstatement impracticable without formally granting the Respondent's alternative orders.

p. 2

Legal principles established

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  • The ingredients to prove contempt of court are: existence of a court order, knowledge or service of the order, breach of the order, and that the breach was deliberate or wilful
  • The standard of proof for contempt is higher than a balance of probabilities

Court orders

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  1. 1.The orders sought in the Motion dated 22 December 2020 are declined
  2. 2.No order on costs
  3. 3.The Respondent's Motion treated as part of the response to the Union's contempt motion
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over contempt of its own orders in Cause No. 23 of 2020

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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 Union of Sugar Plantation & Allied Workers v Kibos Sugar and Allied Industries Limited [2021] KEELRC 817 (KLR)", Case Analysis (2021). Cause No. 23 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/817/eng@2021-10-08

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