Kenya Tea Growers Association v Kenya Plantations and Agricultural Workers Union [2019] KEELRC 1933 (KLR)
The bottom line
#Kenya's Employment Court dismissed a contempt claim against a trade union over a strike because the employer couldn't prove officials actually knew the court order's terms.
What this practically means
#Executive summary
#Key legal issues
#Personal service and knowledge of the order
A presumption that an advocate served with the order informed the named officials of its terms cannot found culpability; service on branch officials was not proved by affidavit of service; media reports published 29th-30th June could not prove knowledge of terms for contempt occurring on 28th-29th June
The Court required service or knowledge of the order's terms to the higher standard applicable in contempt. The process server's evidence showed consultation with Muli Advocate about the fact of service, not the terms. No affidavit of service established service on branch officials. Media reports postdated the alleged contempt and their accuracy as to the order's terms was uncertain.
Whether contempt was established on 28th and 29th June 2016
No - nothing established showing the cited persons or the respondent did anything in disobedience of the order; the strike was instantaneous and not called by the union; destruction of property was a matter for criminal proceedings or statutory remedies, not contempt
The order was prohibitory, requiring restraint by the officials, and the direction to return to work was directed at employees individually. There was no strike notice issued by the union, so the officials were not in control of their members. Property damage claims lay under section 19(1)(b) of the Employment Act and criminal law, not contempt.
Proper respondent to contempt for breaches by union officials or members
Liability should attach to the trade union as a body corporate unless the order expressly imposes duties on officials or members; sequestration against the union is a remedy of last resort
Under section 21 of the Labour Relations Act a union is a body corporate with capacity to sue and be sued. Officials acting within official capacities bind the union, so contempt should be directed at the union itself. Sequestration against the union was available as an ultimate measure but is rarely invoked.
Legal principles established
#- Contempt proceedings require proof to a standard higher than a balance of probabilities, almost but not exactly beyond reasonable doubt
- Unless the order alleged to be disobeyed expressly imposes a duty on union officials or members, disobedience is enforced against the trade union as a body corporate
- Service on an advocate at the union's office constitutes adequate service on the union as a corporate body
- For unprotected strikes, the employer's primary remedy is statutory disciplinary action under section 80 of the Labour Relations Act, with contempt proceedings only in addition and secondary
Court orders
#- 1.The application dated 30.06.2016 and filed on 01.07.2016 is dismissed
- 2.Each party to bear own costs of the application
- Jurisdiction invoked
- section 12 of the Employment and Labour Relations Court Act and section 63(c) of the Civil Procedure Act, Order 40 Rules 3(1)(2)(3) of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Tea Growers Association v Kenya Plantations and Agricultural Workers Union [2019] KEELRC 1933 (KLR)", Case Analysis (2019). ELRC Cause (notice of motion dated 30.06.2016, filed 01.07.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1933/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.