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ELRCPartially AllowedContempt Application dated 18th May 2020 (arising from a recognition dispute cause)· [2021] KEELRC 1823 (KLR)

Kudheiha Workers v Director Riara Group of Schools [2021] KEELRC 1823 (KLR)

Employment and Labour Relations Court
23 April 2021
4,621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Riara Group of Schools and three of its officers were found guilty of contempt for ignoring Employment Court orders protecting unionised employees, and must personally appear for sentencing.

What this practically means

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Executive summary

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The Claimant union moved the Employment and Labour Relations Court by a Contempt Application dated 18th May 2020, seeking to cite three Riara Group of Schools officers - Juju Gachukia, Victoria N. Shigoli and Stephen G. Kariuki - for contempt of ex parte orders issued on 20th February 2020, which restrained victimisation of employees who had signed check-off forms and compelled the Respondent to deduct and remit union dues, with committal to civil jail for six months. The Respondent opposed, arguing compliance with the first order, that the second order lacked a compliance timeline, that signature forgery allegations necessitated membership verification, and that COVID-19 disruptions affected operations. It further contended the application was defective for relying on the unconstitutional Contempt of Court Act. The court held the technical objection did not defeat the application, applying Article 159(2)(d) of the Constitution, and rejected new arguments raised for the first time in submissions. Finding service uncontested and the Respondent's affidavit admissions establishing knowledge of the orders, the court held that seeking membership confirmation breached the unequivocal orders and that excuses of forgery, absent timelines and the pandemic were unevidenced. Non-compliance persisted at least to June 2020, demonstrating deliberate disobedience. The court found the Respondent and the three named officers guilty of contempt and ordered them all to personally appear in court on 4th May 2021 for sentencing. Maureen Onyango, Judge, delivered the judgment at Nairobi on 23rd April 2021.

Key legal issues

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01

Defect of relying on the unconstitutional Contempt of Court Act

Holding

The defect did not invalidate the application because the court applies Article 159(2)(d) eschewing procedural technicalities

Reasoning

The Respondent argued that the application, anchored on the Contempt of Court Act declared unconstitutional in the Kenya Human Rights Commission case, was defective. The court agreed the Act was unconstitutional but invoked Article 159(2)(d) of the Constitution to address the contempt allegations on the merits rather than dismiss the application on that technicality. The court also found no reference to the Pandemic Response and Management Act in the application.

p. 5
02

Whether the orders were clear and unambiguous and knowingly disobeyed

Holding

Yes; service was uncontested, the Respondent admitted knowledge of the orders, and its conduct breached them

Reasoning

The orders restrained victimisation of employees who had signed check-off forms and compelled deduction and remittance of union dues. Service was not contested, and the Respondent's replying affidavit admitted awareness of both orders. By writing to employees seeking confirmation of membership and failing to commence deductions by March 2020, the Respondent disobeyed unequivocal orders. Excuses of forgery allegations, lack of timelines and COVID-19 were unsupported by evidence.

p. 6
03

Guilt of the named officers for contempt

Holding

The Respondent and the three named officers wilfully and deliberately disobeyed the orders and were found guilty of contempt

Reasoning

The court found that as at the filing of the application in May 2020 and the swearing of the replying affidavit in June 2020, the Respondent still had not complied, which was an admission of deliberate disobedience; the Respondent's request for fresh recruitment of union members implied no intention to comply. The three named officers were therefore adjudged guilty of contempt and ordered to appear personally for sentencing.

p. 6

Legal principles established

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  • An order of court is binding and must be obeyed unless and until discharged; a party cannot unilaterally vary or qualify a clear order
  • A party requires leave of the court to deviate from clear orders; unsubstantiated excuses do not justify disobedience
  • New arguments cannot be raised for the first time in submissions; submissions are not evidence
  • Courts administer justice without undue regard to procedural technicalities, so reliance on a statute later declared unconstitutional does not necessarily defeat an application

Court orders

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  1. 1.A finding that the Respondent and its officers Juju Gachukia, Victoria N. Shigoli and Stephen G. Kariuki wilfully and deliberately disobeyed the court's orders and are guilty of contempt
  2. 2.All the cited officers to personally appear in court on 4th May 2021 for sentencing

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 27, 28, 35, 36, 41(5), 47, 48, 159(2)(d)
  • Labour Relations Act, 2007Sections 4, 48, 54, 57
  • Employment Act, 2007Sections 10(5), 19
  • Contempt of Court ActSections 4(1)(a), 6(c)
  • Judicature ActSection 5
  • Civil Procedure ActSections 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 21 Rule 1
  • The Pandemic Response and Management Act, April 2020not specified

Cases cited (13)

  • Lord Johnson v Grant
    1923 SC 789 at 790
  • Robertson v Her Majesty’s Advocate
    2007 HCAC63
  • Board of Governors – Moi High School Kabarak v Malcolm Bell & Another
    (2013) eKLR
  • Mitu Bell Welfare Society v AG and others
    HCC Petition No. 164 of 2014
  • Kenya Human Rights Commission v Attorney General & Another
    (2018) eKLR
  • Christine Wangari Gachege v Elizabeth Wanjiru Evans & 11 Others
    (2014) eKLR
  • Ochino & Another v Okombo and 4 Others
    (1989) KLR
  • Mwangi H.C Wangondu v Nairobi City Commission
    Nairobi Civil Appeal No. 95 of 1998
  • Samuel M. N. Mweru & Others v the National Land Commission & Others
  • Collins Odumba
    [2016] eKLR
  • Alfred Pengo Mamboleo v Oserian Development Co. Ltd & another
    [2018] eKLR
  • Daniel Toroitich Arap Moi & Another -v- Mwangi Stephen Murithi & Another
    (2014) eKLR
  • Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another
    [2005] 1 KLR 828
Jurisdiction invoked
Inherent jurisdiction to punish for contempt; Article 159(2)(d) of the Constitution; Section 5 of the Judicature Act (following declaration of unconstitutionality of the Contempt of Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kudheiha Workers v Director Riara Group of Schools [2021] KEELRC 1823 (KLR)", Case Analysis (2021). Contempt Application dated 18th May 2020 (arising from a recognition dispute cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1823/eng@2021-04-23

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