https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1948

Kenya Chemical Workers Union v Orbit Products Africa Limited (Employment and Labour Relations Cause E876 of 2025) [2026] KEELRC 1948 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1948 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E876 of 2025 HS Wasilwa, J July 8, 2026 Between Kenya Chemical Workers Union Claimant and Orbit Products Africa Limited Respondent Ruling 1.The Claimant/Applicant filed a Notice of Motion application dated 9th January 2026, seeking orders:1.Spent2.That pending the hearing and determination of this Application inter-partes, this Honourable Court be pleased to issue an Order compelling the Respondent to pay in full, within 24 hours, all outstanding salary arrears and to remit all corresponding trade union dues as stipulated in the Consent Judgment adopted by this Honourable Court on 15th December 2025.3.That this Honourable Court be pleased to issue summons for the appearance of the Managing Director and/or Directors of Orbit Products Africa Limited to show cause why they should not be committed to civil jail for contempt of court for willful disobedience and breach of the Consent Judgment of this Honourable Court adopted on 15th December 2025. THAT upon their appearance, the said Managing Director and/or Directors be cited for contempt, and this Honourable Court be pleased to punish them by way of committal to civil jail and/or imposition of punitive fines for their contumacious conduct.4.That in the alternative and without prejudice to the foregoing, this Honourable Court be pleased to issue an Order for the attachment and sale of the Respondent's movable and immovable property to realise the decretal sums due under the said Consent Judgment.5.That the costs of this Application be provided for and borne by the Respondent. Claimant/Applicant’s Case 2.The Applicant avers that the parties recorded a Consent dated 5th November 2025, which was adopted as a Judgment and Order of this Court on 15th December 2025 in ELRC Cause No. E876 of 2025. 3.It is the Applicant's case that the Respondent has, in blatant, wilful and contumacious contempt, defaulted on its obligations under the said Consent Judgment by failing to pay the outstanding salary arrears and remit union dues by the agreed deadline of 14th November 2025, which failure has persisted even after Judgment was entered. 4.The Applicant avers that the Consent Judgment, having been adopted by this Court, carries the full force and effect of a decree thereof, and that the Respondent's disobedience is a direct affront to the authority and dignity of this Court. It fcontends that the Respondent's conduct is orchestrated and sanctioned by its Managing Director and/or Directors, whose personal liability is thereby engaged. 5.The Applicant states that the Respondent's claim to have paid in full is patently false. From the SWIFT payment advices annexed as "RS-1," the payment of Kshs. 65,560.00 to the Kenya Chemical Workers Union on 23rd January 2026 represents January 2026 union dues and not 2025 arrears, while the payment of Kshs. 24,800.00 to COTU described as NOV 25 TO JAN 26 is a composite payment confirming that 2025 dues were not remitted as they fell due. The Applicant avers that there is no evidence whatsoever among the Respondent's exhibits of any salary payment for December 2025. 6.The Applicant asserts that the true position is that November 2025 salaries were paid on or about 22nd January 2026, a delay of over two months from the due date, in blatant violation of Clause 3 of the Consent Judgment which obligated the Respondent to continue the timely payment of all subsequent salaries as they fall due; and as at the date of swearing, the December 2025 salaries remain wholly unpaid, constituting a fresh, ongoing and material breach of the Court's Order. 7.It is the Applicant's case that the Respondent's claim of having paid salaries for the disputed months is a half-truth designed to mislead this Court, as it conspicuously omits the outstanding December 2025 salaries. 8.The Applicant contends that the Respondent's attribution of its default to financial constraints, liquidity issues and operational disruptions is neither a lawful excuse nor a defence to contempt. It avers that if the Respondent faced genuine financial difficulties, its proper recourse was to seek a variation or stay of the Order and not to unilaterally disregard it. 9.The Applicant avers that the allegation that industrial action by employees caused the financial hardship is preposterous and an attempt to blame the victims, given that the said industrial action was itself a direct consequence of the Respondent's initial failure to pay salaries. 10.It is the Applicant's case that the Respondent's conduct demonstrates a pattern of selective, delayed and incomplete compliance amounting to calculated brinkmanship with this Court's authority and the welfare of its members, who are suffering evictions, utility disconnections, hunger and mental anguish. 11.The Applicant states that the substratum of the contempt application has not been extinguished but has, on the contrary, been reinforced by the Respondent's own admissions and silences. Respondent’s Case 12.In opposition to the application, the Respondent filed a replying affidavit dated 26th January 2026, sworn by Rajesh Sharma, its General Manager. 13.The Respondent avers that the application is vexatious, frivolous, in bad faith and an abuse of court process, and is further incompetent for want of the subject decree annexed thereto. 14.While the Respondent acknowledges that the parties executed a Consent dated 5th November 2025 which was adopted as a Consent Decree of this Court on 15th December 2025, it denies the claims in the application and put the Claimant to strict proof. 15.The Respondent avers that the payments stipulated in the Consent Judgment for outstanding salary arrears and union dues have been paid in full, albeit outside the agreed deadlines, and that the said delay was not wilful or contumacious but was occasioned by genuine inability to comply on time arising from severe financial constraints and operational disruptions. 16.It contends that the delay arose from temporary liquidity constraints during the material period, caused by constrained cash inflows and operational disruptions which affected production schedules and revenue realization, and these challenges were exacerbated by repeated unprotected and unsanctioned employee strikes and go-slows that severely impacted production and revenues not only during the relevant period but throughout 2024 and into January 2026. 17.The Respondent states that it has duly paid in full the union dues owed to the Claimant and to the Central Organisation of Trade Unions (COTU) for the months of July to December 2025 and January 2026, and the employees' salaries for the disputed months of October and November 2025, in compliance with the Consent as evidenced in the SWIFT payment advices produced in Court. 18.The Respondent avers that during the material period its operations absorbed approximately Kshs. 291 million in cash, and that although additional financing of approximately Kshs. 253 million was injected, a net cash shortfall of Kshs. 37 million remained. 19.It further states that approximately Kshs. 115 million was tied up in unrealised trade receivables, such that the Respondent did not have sufficient liquid funds at the precise times salaries fell due, with settlement following once cash became available. 20.The Respondent additionally states that it recorded a cumulative loss of approximately Kshs. 577 million for the period up to November 2025, which it relies upon not as justification for the delay but as context for its cash-flow position. 21.It is the Respondent's case that the late payment of union dues and salaries was not willful or deliberate but was caused by economic hardship and operational constraints beyond its control. 22.It contends that at no time did its directors or officers act in willful defiance of the Court's orders, and that upon stabilization of cash inflows, management and the Board authorized settlement of the outstanding obligations in good faith. 23.The Respondent further asserts that having fully complied with the Consent, the substratum of the contempt application has been extinguished. 24.The Respondent states that it has taken internal measures to prioritise payroll and statutory obligations and remains committed to ensuring that salaries and union dues are paid as they fall due going forward. Claimant/Applicant’s Submissions 25.The Applicant submitted that for contempt of court to be established, the following elements must be proved: the existence of a clear and unambiguous court order; the Respondent's knowledge of that order; and the Respondent's wilful disobedience thereof. It was submitted that all three elements are met here beyond peradventure. 26.On the first element, the Applicant submitted that the Consent Judgment adopted on 15th December 2025 is final, binding and unequivocal. It was submitted that Clause 3 thereof imposed upon the Respondent a dual obligation, that: a specific, time-bound obligation to pay the half-salary for September and full salary for October 2025 and to remit union dues on or before 14th November 2025; and a continuing obligation to pay all subsequent salaries and remit union dues as they fall due. The Applicant submitted that the order requires no interpretation and only demands obedience. 27.On the second element, the Applicant submitted that the Respondent's knowledge is admitted as paragraph 4 of the Replying Affidavit of Rajesh Sharma expressly acknowledges: "the Respondent acknowledges that parties executed a consent dated 5-11-2025 and the same was subsequently adopted as a Consent Decree of this Court on 15-12-2025." The Respondent having been a party to the Consent and bound by the decree, nothing more is needed to establish knowledge. 28.On the third element of willful disobedience, the Applicant submitted that the evidence is overwhelming and is admitted by the Respondent itself on three distinct fronts. First, on the breach of the specific deadline, the Applicant submitted that the Replying Affidavit's concession that payments were paid in full albeit outside the agreed deadlines is a confession of disobedience, as the Consent stipulated a specific date and not payment at the Respondent's convenience. 29.Second, on belated and incomplete compliance, it was submitted that the Respondent's own exhibit RS-1 shows payment for specific arrears was made on 23rd January 2026, over two months late, and that in law, late compliance does not purge contempt but only mitigates the consequential orders. 30.Thirdly, on the fresh and ongoing breach of the continuing obligation, the Applicant submitted that the Respondent's Replying Affidavit is conspicuously silent on the payment of December 2025 salaries, and that the Supplementary Affidavit deposes categorically that as at the date of swearing, the December 2025 salaries remain wholly unpaid, a fact not denied by the Respondent and unsupported by any exhibit. It was submitted that this silence amounts to an admission of a fresh, ongoing and material breach of the court's order. 31.On the Respondent's defence of financial constraints, the Applicant submitted that as a matter of law, financial difficulty offers no defence to contempt. A party cannot plead its own financial difficulties as a basis for non-compliance with a court order, and the order must be obeyed to the letter first, with any difficulty properly addressed through an application for variation. It was argued that disobedience, however well-intentioned, is still contempt. 32.The Applicant further submitted that the Respondent's own financial documents betray its argument. The documents disclose that the company injected additional financing of Kshs. 253 million and holds Kshs. 115 million in trade receivables, thereby demonstrating that performance was not impossible but was rather a question of priorities. The directors consciously chose to deploy available resources elsewhere in deliberate defiance of the Court's order. 33.On the Respondent's attribution of default to employee strikes and go-slows, the Applicant argued that this is preposterous and an attempt to blame the victims, as the industrial action was a direct and foreseeable consequence of the Respondent's own initial failure to pay salaries. It was submitted that a party cannot rely on the consequences of its own breach as justification for perpetuating that breach and defying a court order meant to resolve it. 34.On the question of directorial liability, the Applicant submitted that it is a well-established principle of company law that a company acts through its directors and officers as its directing mind and will. It was submitted that the deliberate and calculated nature of the disobedience by prioritising other payments over court-ordered salaries could only have been sanctioned at the directorial level. Further, the directors are personally liable for the company's contempt and ought to be cited to show cause why they should not be committed to civil jail. 35.It is the Applicant’s submission that the Respondent's Replying Affidavit is a confession of guilt disguised as a defence as it admits the delay, omits the ongoing breach, and offers no legal excuse. 36.It was submitted that the substratum of the contempt application has not been extinguished but is reinforced by the ongoing non-payment of December 2025 salaries. The Applicant urged the Court to find that this is precisely the case for which the contempt power was designed, and that unless the Court acts with the full force of the law, its orders will be rendered nugatory. Respondent’s Submissions 37.On the law, the Respondent submitted that contempt proceedings are quasi-criminal in nature and that the standard of proof required is higher than on a balance of probabilities, being almost but not exactly beyond reasonable doubt. In this regard, the Respondent relied on Omar v Omari [2026] KEHC 3208 (KLR), which cited with authority Gatharia K. Mutikika v Baharini Farm Ltd [1985] KLR 227, where it was held that: "A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily... it must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt..." 38.The Respondent further relied on North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi [2016] eKLR for the proposition that the elements of civil contempt are: that the terms of the order were clear and unambiguous and binding on the defendant; that the defendant had knowledge of or proper notice of the terms of the order; that the defendant acted in breach of the terms of the order; and that the defendant's conduct was deliberate. 39.It was submitted that while the clarity of the order and the Respondent's knowledge thereof are not in dispute, what is vehemently contested is whether the breach, if any, was wilful or deliberate. 40.On breach, the Respondent submitted that it has produced uncontroverted documentary evidence demonstrating that all obligations under the Consent Judgment have been met. 41.It was submitted that the payment records at pages 6–16 of the Replying Affidavit, comprising SWIFT payment advices, DTB Remittance Advices and bulk salary payment records, establish the following payments: KCWU union dues for July to October 2025 paid on 24th December 2025 in the sum of Kshs.274,240.00; COTU dues for the same period paid on 23rd December 2025 in the sum of Kshs. 34,300.00; KCWU dues for November and December 2025 paid on 22nd January 2026 in the sum of Kshs. 132,720.00; KCWU dues for January 2026 paid on 23rd January 2026 in the sum of Kshs. 65,560.00; COTU dues for November 2025 to January 2026 paid on 23rd January 2026 in the sum of Kshs. 24,800.00; and employee salaries for October and November 2025 paid through bulk salary transactions processed on 31st October 2025, 7th October 2025, 15th December 2025, and 22nd January 2026. 42.The Respondent submitted that all salary arrears and union dues specifically identified in Clauses 2 and 3 of the Consent had been paid at the time of filing the application, and that the delays were attributable to genuine and documented cash flow constraints and not to any willful, deliberate or contumacious refusal to comply. 43.On the genuineness of financial constraints, the Respondent submitted that its Management Cash Flow Statement for January to November 2025 discloses that operations absorbed approximately Kshs. 291 million in cash; additional financing of approximately Kshs. 253 million was injected; notwithstanding such financing, a net decrease in cash of approximately KES 37 million remained; approximately Kshs. 115 million was tied up in unrealised trade receivables; and the cumulative loss for the period was approximately Kshs. 577 million. 44.It was submitted that the Claimant's assertion that the existence of Kshs. 253 million in financing and Kshs. 115 million in trade receivables proves that the Respondent had the means to pay and consciously deployed resources elsewhere is misconceived and based on a misapprehension of basic cash flow management. 45.The Respondent argued that trade receivables represent amounts owed but not yet collected in cash. A company may have assets and financing facilities and still face acute short-term liquidity constraints. It was submitted that the payment records demonstrate a party making consistent and genuine efforts to comply by paying salaries and union dues as soon as cash became available. 46.On the scope of the consent judgment, the Respondent submitted that the Consent Judgment contains two distinct categories of obligations: time-bound obligations under Clauses 2 and 3 requiring payment of specifically identified arrears and union dues by stipulated dates, which have been discharged; and a continuing forward-looking obligation to pay all subsequent salaries and union dues as they fall due. 47.It was submitted that the continuing obligation to pay salaries is not only a statutory obligation but also a pre-existing contractual obligation that would exist independently of the Consent. The Consent did not create a new payment schedule for December 2025 and beyond but merely affirmed an existing obligation. 48.The Respondent argued that any failure to pay salaries for December 2025 or subsequent months would constitute a breach of the employment contracts of the affected employees, actionable through the appropriate employment law mechanisms, and not a fresh act of contempt. 49.It was submitted that the Claimant's contention that any failure to pay on the last day of the month constitutes a new act of contempt is a misapprehension of both the law and the employment relationship. 50.On personal liability of directors, the Respondent submitted that the threshold for holding directors personally liable for a company's contempt is high, and that an applicant must demonstrate that the individual director, as the directing mind and will of the company, personally authorised or directed the non-compliance. In support thereof, the Respondent relied on Munene & 5 others v Attorney General & another; County Government of Kiambu (Interested Party) [2023] KEHC 1537 (KLR), which cited Republic v Principal Secretary, Ministry of Defence Ex Parte George Kariuki Waithaka [2019] eKLR : “that it is now established that the mental element for liability for contempt arising out of disobedience is simply that the disobeying party either intended to disobey, or made no reasonable attempt to comply with the order”. 51.It submitted that the Claimant has led no evidence identifying any specific act or omission by any named director constituting a personal decision to defy the Consent Judgment. The Respondent argued that the bare assertion that the delay was orchestrated and sanctioned by the directors is insufficient to ground personal liability. Reliance was placed on Munene & 5 others v Attorney General & another; County Government of Kiambu (Interested Party) [2023] KEHC 1537 (KLR): “In Moses Kuria v Hon. Attorney General & 2 others [2017] eKLR - the Court of Appeal considered the question of whether a person can be held in contempt of court for breaching a court order when the breach was beyond their control. The court held that it would be unjust to hold a person in contempt if the breach was beyond their control and was not the result of their deliberate actions.” 52.It was submitted that all evidence points to delays occasioned by forces outside the directors' control, and that the directorship made every effort, including securing additional funding, to stabilise operations and meet all obligations. 53.On proportionality and the Court's discretion, the Respondent submitted that without prejudice, even if this Court were to find that contempt has been established in respect of the delayed payments, the appropriate remedy should not be committal to civil jail. 54.It was submitted that the purpose of civil contempt proceedings is coercive and remedial and not purely punitive, relying on Law Society of Kenya & 3 others v Inspector General of Police & 4 others [2024] KEHC 10634 (KLR), which cited the South African Constitutional Court in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021) where the distinction between coercive and punitive orders was explained thus: "A coercive order gives the respondent the opportunity to avoid imprisonment by complying with the original order and desisting from the offensive conduct. Such an order is made primarily to ensure the effectiveness of the original order by bringing about compliance..." 55.It was submitted that committal to civil jail should be a measure of last resort, appropriate only where other means of securing compliance have failed or proved manifestly futile, and that the imprisonment of the company's directors would only further destabilise the company, jeopardise its operations and ultimately harm the very employees whose welfare the Claimant seeks to protect. Reliance was placed on Mutitika v Baharini Farm Ltd [1985] KECA 60 (KLR), where the Court of Appeal held that it is competent for the Court to take the lenient course of ensuring compliance where one exists, as opposed to the drastic remedy of committal. 56.The Respondent submitted that the Claimant has failed to discharge the high burden of proving willful or deliberate contempt to the required standard, and that the evidence demonstrates a company that faced genuine financial hardship and made consistent efforts to comply. 57.It was further submitted that in respect of the months after November 2025, the application misapplies the contempt jurisdiction by seeking to enforce a general continuing salary obligation through contempt proceedings rather than through the appropriate employment law enforcement mechanisms. 58.I have examined all the averments and submissions of the parties herein. The applicant seeks an order from this court to find the respondents in contempt of this court’s orders for not paying up the money as per the consent entered into by the parties herein. 59.The consent was adopted as an order of this court on 15/12/2025. The court just proposed a plan for payments of moneys owing. Even as the applicant seeks to enforce this judgment which the respondent aver they have complied with, there is no decree extracted for execution. 60.In the absence of any decree extracted by the applicant, the applicants cannot proceed to try and punish the respondents for none payment if at all. It is my finding that the application is filed pre maturely and cannot stand. I proceed to dismiss the application. There shall be no order of costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF JULY 2026.HELLEN WASILWAJUDGE