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ELRCDismissedELRC Cause (Mombasa), Claimant's Notice of Application dated 16th October 2017 arising from judgment delivered 23rd May 2014· [2021] KEELRC 1834 (KLR)

Kenya Engineering Workers Union v Kenya Marine Contractors (EPZ) Limited [2021] KEELRC 1834 (KLR)

Employment and Labour Relations Court
22 April 2021
LNLINNET NDOLO
819 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused contempt proceedings against an employer, ruling that a dispute over how much is owed under an award must be raised through proper proceedings, not contempt applications.

What this practically means

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Executive summary

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By a judgment delivered on 23rd May 2014, Radido J awarded employees of the Respondent, members of the Claimant Union, an 11% wage increase effective 1st August 2012 and a further 11% wage increase effective 1st August 2013, with other terms set at statutory minimums, and directed the parties to sign a CBA within 30 days. The Claimant's present application, dated 16th October 2017 and supported by an affidavit of its General Secretary Charles Natili Wekesa, sought an order summoning the Respondent's Director, Simon Philip, to show cause why contempt proceedings should not be preferred against him for failing to implement that judgment. The Respondent replied through its Administration Manager, Nuru Hamed, deponing that it had continued to pay members' salaries during the case, that the members were entitled to a computed difference of Kshs. 9,130,412.56 after tax, that the Claimant had liquidated the Kshs. 10,000,000 held as security for the Respondent's appeal, and that a balance of Kshs. 869,587.44 was owed to the Respondent. Ndolo J found that the real issue was the tabulation of the award, a question of fact that could not be resolved in a single prayer application for contempt summons. Noting that the Claimant had already liquidated the security sum towards the award, the Court disallowed the application and directed each party to bear its own costs. The judgment was delivered virtually at Mombasa on 22nd April 2021 owing to COVID-19 restrictions.

Key legal issues

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Whether contempt proceedings were the appropriate vehicle to resolve the parties' dispute over tabulation of the award

Holding

No - the application was disallowed because the real issue was factual quantification of the award, not contumacious disobedience

Reasoning

The Court found that the Claimant had already liquidated Kshs. 10,000,000 held as security for the Respondent's appeal towards satisfaction of the award, so it was untrue that the award had not been satisfied at all. The parties' divergent positions - whether the award remained unsatisfied or members were overpaid - turned on matters of fact unsuitable for determination in a single prayer application. The Claimant was advised to identify its real issues and bring them in appropriate proceedings.

p. 2

Legal principles established

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  • A dispute as to the quantum or tabulation of an award, being a dispute of fact, cannot be determined in a single prayer application such as an application for summons for contempt; the party must frame the proper proceedings.

Court orders

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  1. 1.The Claimant's application dated 16th October 2017 is disallowed
  2. 2.Each party will bear their own costs
On appeal from
Court of Appeal
Appeal No 28 of 2015
Jurisdiction invoked
Court's power to enforce its own judgment and to punish contempt of its orders

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 Engineering Workers Union v Kenya Marine Contractors (EPZ) Limited [2021] KEELRC 1834 (KLR)", Case Analysis (2021). ELRC Cause (Mombasa), Claimant's Notice of Application dated 16th October 2017 arising from judgment delivered 23rd May 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1834/eng@2021-04-22

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