Newton F. Kimanthi & another v Seth Panyako & 2 others; Registrar of Trade Unions (Interested Party) [2021] KEELRC 1799 (KLR)
The bottom line
#A Kenyan court ruled that decisions made in defiance of a court order remain invalid even after the order is lifted.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st and 3rd Respondents were served with the injunction order of 25.9.2019
They were duly served or at least knew of the order before the meeting; substituted service by email was permitted under leave granted and Rule 12(2) of the ELRC Procedure Rules 2016
The claimants obtained leave to serve by email and/or last known address, dispensing with personal service. The respondents acknowledged the email sent at 8.58 pm on 25.9.2019. Relying on Shimmers Plaza Ltd v National Bank of Kenya, knowledge of a court order suffices for service. The court found the respondents deliberately failed to comply with the order and rejected the argument that the order lapsed under Order 40 Rule 6 for want of service.
Effect of the order of 20.1.2020 setting aside the injunction
The setting aside did not validate the resolutions passed on 27.9.2019 in breach of the injunction; they remained null and void
Applying the Trans Nzoia Investment principle (citing Macfoy v United Africa Co Ltd) that acts done in violation of a court order are void ab initio, the court held that vacation of the injunction could not sanitise contemptuous acts. The respondents' remedy was to convene a fresh meeting, which they in fact did on 23.10.2020, and they were free to seek registration of those resolutions under section 27 of the Labour Relations Act.
Whether the Registrar of Trade Unions should be compelled to adopt the 27.9.2019 resolutions
No; the Registrar correctly refused to register resolutions that were null and void
Having been served with the injunction and enjoined in the suit, the Interested Party was entitled, and indeed obliged, not to aid and abet the respondents' contempt by registering an invalid resolution. Compelling registration would invite the court to act in vain since there was nothing legally capable of registration.
Whether the suit is spent or overtaken by events
Yes, the suit as pleaded is spent and/or overtaken by events
The substantive relief sought was a permanent injunction to restrain the SNGC meeting of 27.9.2019. That meeting took place (albeit in contempt), the temporary order was vacated on 20.1.2020, and another SNGC meeting was peacefully held on 23.10.2020. The court therefore declared the suit spent, declined the remaining orders in the motion, dismissed the application and closed the file.
Legal principles established
#- Knowledge of a court order suffices to prove service and dispense with personal service, including for contempt purposes, where leave for substituted service was granted
- An act done in violation of a court order is void and a nullity, and subsequent vacation of the order does not sanitise the act; proceedings founded on it are incurably bad
- Setting aside an injunction does not validate resolutions already passed in breach of it; the party must call a fresh meeting
Court orders
#- 1.A declaration that the suit, as pleaded, is spent and/or overtaken by events
- 2.The suit is marked as spent and the file closed
- 3.Dismissal of the Notice of Motion dated 2.3.2020, with all other orders sought declined
- 4.Each party to bear their own costs of the application and the suit
- Jurisdiction invoked
- Not expressly stated; jurisdiction exercised under the Employment and Labour Relations Act and the ELRC Procedure Rules 2016 (interlocutory application within a claim under the Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Newton F. Kimanthi & another v Seth Panyako & 2 others; Registrar of Trade Unions (Interested Party) [2021] KEELRC 1799 (KLR)", Case Analysis (2021). Cause No 633 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1799/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.