[2021] KEELRC 2273 (KLR)
The Court held that the application for contempt of court against the Respondent and its managers could not be granted without first hearing and determining the main suit on the merits. The alleged contempt was closely linked to the substantive issues of unfair termination and union recognition, which required full...
Source-derived case information.
- Citation
- [2021] KEELRC 2273 (KLR)
- Parties
- Applicant: Kenya Union of Sugar Plantation & Allied Workers; Respondent: Busia Sugar Industry Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 13 of 2020
- Procedural Posture
- Labour Cause / Interlocutory Ruling on Contempt Application and Directions for Hearing on Merits
- Outcome
- Contempt application declined; previous directions vacated; main suit to proceed to hearing on merits.
- Legal Topics
- Union Recognition, Unfair Termination, Contempt of Court, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Sugar Plantation & Allied Workers
Applicant
Busia Sugar Industry Ltd
Respondent
Procedural Posture
Labour Cause / Interlocutory Ruling on Contempt Application and Directions for Hearing on Merits
Legal Issues
- 1 Whether the respondent violated court orders issued on 13th February 2020 by terminating employees or otherwise acting against union members.
- 2 Whether the contempt application can be granted before hearing the main termination suit on its merits.
- 3 Whether the orders/directions given on 10 November 2020 should be vacated.
Ratio Decidendi
The Court held that the application for contempt of court against the Respondent and its managers could not be granted without first hearing and determining the main suit on the merits. The alleged contempt was closely linked to the substantive issues of unfair termination and union recognition, which required full ventilation through a hearing. The Court therefore vacated all orders and directions given on 10 November 2020 and directed that fresh directions would issue upon hearing the main cause. The Court emphasized the need for due process and that interlocutory applications should not pre-empt the determination of the main dispute.
Court Disposition
Contempt application declined; previous directions vacated; main suit to proceed to hearing on merits.
Orders
- The application dated 4th May 2020 is declined as incapable of grant without hearing the termination suit on the merits.
- All orders and directions given on 10 November 2020 are vacated.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 13 OF 2020
KENYA UNION OF SUGAR PLANTATION
AND ALLIED WORKERS CLAIMANT
v
BUSIA SUGAR INDUSTRY LTD RESPONDENT
RULING
1. On 13 February 2020, the Kenya Union of Sugar Plantation & Allied Workers (the Union) moved the Court alleging that Busia Sugar Industry Ltd (the Respondent) had declined to effect union deductions and/or grant it recognition.
2. In the same Memorandum of Claim, the Union alleged that the Respondent had unfairly terminated the contracts of some named 10 persons (Grievants).
3. Filed together with the Memorandum of Claim was a Motion seeking several orders.
4. On the same day, the Court issued an ex-parte order in the following terms
2. THAT pending the hearing and determination of this suit, the Respondent, his agents or managers, and/or any other persons serving the interests of the Respondent is hereby restrained /stopped/restricted and prohibited from threatening, harassing, victimising, terminating and/or dismissing any of the employees on account of union membership or this litigation.
5. The Court fixed inter-partes hearing of the motion for 4 March 2020.
6. The Respondent filed a Response to the Memorandum of Claim and a replying affidavit in opposition to the Motion on 25 February 2020.
7. On 4 March 2020, the Court confirmed the ex-parte orders and directed that the Cause do proceed to hearing on the merits on 30 April 2020. The parties were directed to file and exchange witness statements (the hearing did not proceed due to COVID19 public health pandemic).
8. Nevertheless, on 4 May 2020, the Union filed another Motion seeking orders
1. …
2. THAT the Respondent is declared to have violated and disobeyed lawful orders of this Honourable Court issued on 13th February 2020 by this Honourable Court (sic) thereby liable to punishment for contempt.
3. THATthe Human Resources Officer Mr. Caleb Anyula and the Administrator Mr. Mohamed Bajaber being senior servants/managers of the Respondent be summoned to appear before this Honourable Court on the earliest date possible to show cause why they should not be cited for court contempt.
4. THAT the purported terminations of the grievant employees listed herein be declared unfair terminations and the same be reversed by an order of reinstatement.
5. THAT this Honourable Court be pleased to issue orders of imprisonment or detention of the two Respondent managers named above for a period not less than 6 months or a fine of two hundred thousand each for disobedience to court orders.
6. THAT the Court be pleased to issue such other orders as may be necessary for the sake of safeguarding the dignity of this Honourable Court.
7. THAT cost of this suit is provided for by the Respondent.
9. When this latter Motion was placed before the Court on the same day, the Court ruled
The application dated 4th May 2020 is incapable of grant without hearing the termination suit on the merits. The main suit be served and it be responded to within 21 days. The Claimant to file a Reply if any within 14 days. Directions for hearing on notice.
10. The next time the parties appeared before the Court was on 12 October 2020. The Court directed that the recognition dispute be heard on a priority basis on 10 November 2020.
11. On 10 November 2020, the parties without informing the Court of previous orders indicated that what was coming up was an application.
12. The Court directed that the application be determined by way of the record and further that the County Labour Officer prepare and file a report within 30 days and that thereafter the parties file and exchange submissions.
13. The County Labour Officer filed a report on 14 December 2020, the Union filed its submissions on 30 November 2020 while the Respondent’s submissions were not on record by the agreed timeline.
14. The Court has looked at the County Labour Officer’s report. It is relevant for the main Cause and not any of the applications which had been filed.
15. Considering the peremptory orders by the Court on 4 May 2020, the Court vacates all the orders/directions given on 10 November 2020.
16. Fresh directions to issue on hearing of the Cause on the merits.
Delivered through Microsoft teams, dated and signed in Kisumu on this 27th day of January 2021.
Radido Stephen, MCIArb
Judge
Appearances
For Union Mr. Akhonya, National Assistant Treasurer
For Respondent Ipapu P. Jackah & Co. Advocates
Court Assistant Chrispo Aura