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ELRCDismissedCause No E693 of 2020· [2022] KEELRC 795 (KLR)

Banking, Insurance and Finance Union Applicant v County Sacco Society Limited [2022] KEELRC 795 (KLR)

Employment and Labour Relations Court
11 February 2022
MOMaureen Onyango
1,881 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Nairobi dismissed a trade union's contempt case because it failed to precisely prove exactly who disobeyed which court order, and how.

What this practically means

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Executive summary

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The Claimant union applied by notice of motion dated 16th August 2021 seeking committal to civil jail of five named officials of the Respondent for alleged wilful disobedience of orders issued on 29th October 2020 and consent orders signed on 18th March 2021 and adopted on 19th May 2021. The application also sought reinstatement of an employee, payment of provident fund contributions, responsibility allowances, and orders restraining harassment, victimisation and disciplinary action against unionisable employees. The Respondent opposed through the replying affidavit of Henry Njue Mbogo, denying breach of the consent, explaining that some employees resigned voluntarily or faced disciplinary processes for valid reasons including falsified qualifications, and asserting commitment to the consent order. The application was disposed of by written submissions. The court framed a single issue: whether the Applicant established that the alleged contemnors wilfully disobeyed the consent order. Applying the four elements of contempt - a clear and unambiguous order, knowledge or notice, breach, and deliberateness - the court found the consent order to be general in terms with no compliance timelines. The Applicant's 35 grounds amounted to a litany of allegations requiring a hearing to prove, and failed to specify which orders were breached, how, and by whom. Contempt being quasi-criminal, precision was required. Prayers 3 to 7 related to matters for investigation under the recognition agreement and the Labour Relations Act dispute resolution machinery, not covered by the orders allegedly disobeyed. The court held contempt was not proved and dismissed the application, making no orders for costs given the nature of the complaints. The judgment was delivered virtually at Nairobi on 11th February 2022.

Key legal issues

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01

Whether contempt was established

Holding

Not established; the consent order was general in terms with no compliance timelines and the complaints required a hearing to prove

Reasoning

The consent order framed obligations in very general terms with no specific timeline for compliance. The Applicant listed 35 grounds which were largely allegations denied by the Respondent, some based on misunderstandings. The Applicant failed to set out the specific orders, the manner of breach, and by whom. Contempt being quasi-criminal, precision is required.

p. 3

Legal principles established

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  • Elements to be proved in contempt proceedings
  • Contempt is quasi-criminal and must be precisely pleaded

Court orders

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  1. 1.The application dated 16th August 2021 is dismissed
  2. 2.There shall be no orders for costs

Authorities

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Legislation

  • Labour Relations Actdispute resolution machinery (not specified)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48
Jurisdiction invoked
Contempt of court jurisdiction; consent orders adopted by the Court on 19th May 2021 and orders of 29th October 2020

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, "Banking, Insurance and Finance Union Applicant v County Sacco Society Limited [2022] KEELRC 795 (KLR)", Case Analysis (2022). Cause No E693 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/795/eng@2022-02-11

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