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ELRCDismissedELRC Cause at Kisumu (notice of motion dated June 30, 2021)· [2022] KEELRC 1355 (KLR)

Kenya Union of Water & Sewerage Employees v Migori Water & Sanitation Co. Ltd & another (Cause 5 of 2021) [2022] KEELRC 1355 (KLR)

Employment and Labour Relations Court
14 July 2022
CBChristine N. Baari
1,886 words in judgment
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The bottom line

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The Employment Court in Kisumu refused to suspend contract non-renewal letters or jail officials for contempt, finding no deliberate disobedience of its earlier consent order.

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 by Baari J determines a notice of motion dated June 30, 2021 by a trade union claimant. The application, anchored on the Employment Act, the ELRC Act and the Labour Relations Act, sought suspension of the respondents' letters of April 30, 2021 and June 15, 2021 (declining to renew the grievants' contracts), and committal to civil jail of the 1st respondent's Acting Managing Director, Commercial Manager and the 2nd respondent's Board Chairman for alleged contempt of a consent judgment adopted by the court on February 4, 2021, which had ordered unconditional reinstatement of two employees, continued discipline of Collins Ochieng Otieno, payment of salaries and release of union dues. The respondents admitted partial non-compliance on salary arrears, attributing it to disbursement challenges from the County Government, and showed that they had met with the grievants to agree a payment plan. The court framed two issues: whether the decision declining contract renewal should be suspended, and whether the respondents should be committed for contempt. On the first, it held that contract renewal was not part of the consent order and that suspending the letters would amount to reinstating the grievants at an interlocutory stage. On contempt, applying the four-element test and citing Johnson v Grant and other authorities, it found the consent order had largely been complied with and disobedience was not deliberate. Garnishee orders were also held improper against a public entity. The application was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Suspension of the respondents' letters declining contract renewal

Holding

Declined; contract renewal was outside the consent order and no evidence showed the grievants remained in service

Reasoning

The consent order addressed reinstatement, discipline and salary arrears only, not contract renewal. The refusal to renew was communicated over a year earlier and no evidence showed the grievants were still in service; suspending the letters would effectively reinstate them at interlocutory stage.

p. 3
02

Committal for contempt of court

Holding

Refused; disobedience was not deliberate

Reasoning

Applying the four-element test, the parties agreed the consent order had largely been complied with, with arrears and union dues outstanding due to financial challenges and disbursement issues from the County Government. The respondents' failure was therefore not deliberate disobedience warranting committal.

p. 4
03

Garnishee proceedings against a public entity

Holding

Improper in law

Reasoning

The body of the application sought garnishee orders, but the 1st respondent is a public/Government entity and the Civil Procedure Act and rules, which prescribe execution, exempt the Government from the execution process; execution as a decree-holder's right therefore cannot lie against the respondents.

p. 5

Legal principles established

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  • To succeed in contempt, the applicant must prove clear and unambiguous binding orders, knowledge/notice of the terms, breach, and deliberate conduct
  • Purpose of contempt proceedings is to safeguard the rule of law, not the dignity of the court
  • The Government/public entities are exempted from execution and garnishee proceedings under the Civil Procedure Act and rules
  • An interlocutory order that would achieve final reinstatement is improper

Court orders

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  1. 1.The application for an interlocutory order staying/suspending the respondents' letters dated April 30, 2021 and June 15, 2021 is declined
  2. 2.The notice of motion dated June 30, 2021 is dismissed in its entirety

Authorities

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Legislation

  • Employment Actsections 17, 18(2), 19, 25
  • Employment and Labour Relations Court Actsections 12, 16, 20
  • Labour Relations Actsection 78
  • Civil Procedure Act & rules 2010execution process provisions

Cases cited (4)

  • Johnson vs Grant
    1923 SC 789 at 790
  • Kenya Tea Growers Association Vs Francis Atwoli and 5 Others
    [2012] eKLR
  • Clarke and Others Vs Chadburn & Others
    [1985] 1 All E.R (PC), 211
  • Samuel M. N Mweru and other V National Land Commission & 2 others
    [2020] eKLR
Jurisdiction invoked
Sections 12, 16 and 20 of the Employment and Labour Relations Court Act; sections 17, 18(2), 19 and 25 of the Employment Act; section 78 of the Labour Relations Act

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 Union of Water & Sewerage Employees v Migori Water & Sanitation Co. Ltd & another (Cause 5 of 2021) [2022] KEELRC 1355 (KLR)", Case Analysis (2022). ELRC Cause at Kisumu (notice of motion dated June 30, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1355/eng@2022-07-14

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