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ELRCDismissedCause – application dated April 21, 2021 (Notice to Show Cause / contempt application) arising from ruling delivered January 15, 2021· [2023] KEELRC 2152 (KLR)

Kenya County Government Workers Union v Nairobi City Water and Sewerage Company; National Union of Water and Sewerage Employees (Objector) (CBA 34 of 2020) [2023] KEELRC 2152 (KLR)

Employment and Labour Relations Court
21 September 2023
1,719 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a contempt claim, confirming that you cannot punish anyone for disobeying an order that never required anyone to do anything.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Eldoret (Maureen Onyango, J) determined a contempt application dated April 21, 2021 by the Kenya Union of Water and Sewerage Employees (KUWASE), the Objector, against officials of the Kenya County Government Workers Union (KCGWU) and Nairobi City Water and Sewerage Company Limited. KUWASE sought issuance of summons requiring the named officials to show cause why they should not be committed for disobeying orders arising from the court's ruling of January 15, 2021, which declined to register a CBA between KCGWU and the Employer for want of capacity and in violation of prior unchallenged decisions in Cause No 439 of 2010 and CA No 213 of 2010, as confirmed by the Court of Appeal in Civil Appeal No 18 of 2013. KUWASE complained that union dues continued to be deducted and remitted to KCGWU, which allegedly recruited over 400 members from the water sector. The Employer and the Union opposed, asserting that the ruling contained no positive or enforceable order capable of disobedience, a position confirmed in the court's ruling of August 13, 2021 dismissing the Union's stay application. Applying the Gatharia K Mutitika v Baharini Farm standard, the court held contempt is quasi-criminal and requires proof of unequivocal orders deliberately ignored. The January 15, 2021 order was negative and incapable of being disobeyed; the non-remittance of dues was a separate cause of action. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether contempt was established against the alleged contemnors

Holding

The application failed; the applicant did not prove disobedience of any court order

Reasoning

The ruling of January 15, 2021 only declined to register the CBA between KCGWU and the Employer; it did not order any party to do or abstain from doing anything. Contempt being quasi-criminal requires proof of unequivocal orders deliberately ignored to a heightened standard. What the applicant complained of (continued deduction and remittance of dues) was at most a consequence of the order, not disobedience of it, and is a separate cause of action.

p. 4
02

Whether the applicant's grievance (non-remittance of union dues) could be pursued in these proceedings

Holding

No; non-remittance of union dues is a separate cause of action from registration of the CBA

Reasoning

These proceedings concerned registration of a CBA. The objector's complaint about the Employer continuing to deduct dues and remit them to KCGWU could not be resolved within a contempt application arising from the CBA registration ruling. The proper course was a separate cause of action against the Employer for remittance of dues.

p. 4

Legal principles established

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  • Contempt of court is quasi-criminal and the applicant must prove unequivocal court orders deliberately ignored, to a standard higher than balance of probabilities
  • A negative order which does not require or restrain any act is incapable of being disobeyed and cannot ground contempt

Court orders

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  1. 1.The application dated April 21, 2021 is dismissed
  2. 2.No orders for costs

Authorities

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Cases cited (1)

  • Gatharia K Mutitika v Baharini Farm Limited
    [1985] KLR 227
Jurisdiction invoked
Employment and Labour Relations Court, reference to Court of Appeal Civil Appeal No 18 of 2013 and prior orders of the ELRC in Cause No 439 of 2010 and CA No 213 of 2010

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 County Government Workers Union v Nairobi City Water and Sewerage Company; National Union of Water and Sewerage Employees (Objector) (CBA 34 of 2020) [2023] KEELRC 2152 (KLR)", Case Analysis (2023). Cause – application dated April 21, 2021 (Notice to Show Cause / contempt application) arising from ruling delivered January 15, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2152/eng@2023-09-21

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