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ELRCDismissednot stated in the judgment as provided· [2024] KEELRC 640 (KLR)

Kenya Chemical Workers Union v Kenya Flexgravure Limited (Cause E022 of 2023) [2024] KEELRC 640 (KLR)

Employment and Labour Relations Court
20 March 2024
DNDavid Nderitu
2,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to jail company directors for contempt because the union couldn't prove the breach or even name the affected workers.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim dated 16th March 2023 seeking injunctions restraining the respondent from interfering with the employment of locked-out employees, and an order that the employees be allowed to resume work. On 18th May 2023 the court issued interim orders restraining the respondent from terminating the affected employees on redundancy or otherwise except in accordance with the law, and ordering payment of their monthly salaries as at the lockout of 13th March 2023. By a notice of motion expressed to be brought under Section 5 of the Judicature Act, Section 29 of the Contempt of Court Act and Order 40 Rule 4 of the Civil Procedure Rules, the claimant sought summonses against directors Mahendra Chandulal Patel, Sonal Patel and Sejal Ashish Patel, their committal to civil jail for six months, and an order that they purge the contempt by paying salaries from 13th March 2023. The respondent denied breach and asserted compliance with the law. The court framed a single issue: whether the respondent was in contempt of the orders of 18th May 2023. It held that a union suing representatively must name the grievants; none were named and none swore an affidavit confirming the allegations. Applying the four ingredients of contempt from Samuel M. N. Mweru v National Land Commission, and noting that contempt is quasi-criminal and proof must exceed the balance of probabilities, the court found no adequate evidence of breach, observing also that the orders of 18th May 2023 did not prohibit lawful termination and that the legality of the redundancy was not a pleaded issue. The application was dismissed with no order as to costs, with leave suggested to amend the pleadings.

Key legal issues

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01

Whether the respondent was in contempt of the orders of 18th May 2023

Holding

The application fails; contempt was not proved because the grievants were not named, no affected employee swore an affidavit, and the alleged breach (the redundancy process) was not supported by proper evidence from both sides.

Reasoning

The court applied the four ingredients of contempt from Samuel M. N. Mweru v National Land Commission, emphasizing that contempt is quasi-criminal and proof must exceed the civil balance of probabilities. The claimant pleaded general allegations, disclosed no grievants, and adduced no evidence on how the redundancy was conducted. The court noted the 18th May 2023 orders did not prohibit lawful termination, and the legality of the redundancy was not a pleaded issue.

p. 5
02

Disclosure of grievants in representative suits by unions

Holding

A union suing in a representative capacity must disclose and name the grievants or members on whose behalf it sues; none of the grievants signed any affidavit confirming the allegations.

Reasoning

The court observed that although the secretary general may swear affidavits on facts within his knowledge or on information, it is more appropriate for the grievants themselves to affirm the facts on the ground. Naming the grievants eliminates the likelihood of representative suits being abused or violated.

p. 4

Legal principles established

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  • Where a union or employers' organization brings an action in a representative capacity, the grievants or members must be disclosed and named.
  • The standard of proof in contempt proceedings is higher than a balance of probabilities, though not beyond reasonable doubt.
  • Four ingredients of contempt must be proved by the applicant.

Court orders

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  1. 1.The notice of motion dated 16th March, 2023 by the claimant is dismissed with no order as to costs
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A and 1B of the Civil Procedure Act; Section 3 of the Employment and Labour Relations Court Act; Section 5 of the Judicature Act; Section 29 of the Contempt of Court Act; Order 40 Rule 4 of the Civil Procedure Rules

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 Chemical Workers Union v Kenya Flexgravure Limited (Cause E022 of 2023) [2024] KEELRC 640 (KLR)", Case Analysis (2024). not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/640/eng@2024-03-20

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