Simon Otieno Adede,Samson Omondi Chilo,Margaret Awuor Odhiambo, Francis Ochieng Osure,Chrispine Pudo & Mek Sacco Ltd v Kenya Union of Commercial Food and Allied Workers [2016] KECA 801 (KLR)

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: MARAGA, MUSINGA & GATEMBU, JJ.A)

CIVIL APPEAL NO. 56 OF 2015

BETWEEN

SIMON OTIENO ADEDE                      )

SAMSON OMONDI CHILO                  )

MARGARET AWUOR ODHIAMBO     ) 1ST APPELLANT

FRANCIS OCHIENG OSURE                )

CHRISPINE PUDO                                )

MEK SACCO LTD   ....................................… 2ND APPELLANT

VERSUS

KENYA UNION OF COMMERCIALFOOD AND ALLIED WORKERS .. RESPONDENT

(An appeal from the decision/order/ruling/findings of the Industrial Court of Kenya at Kisumu (Onyango, J.) dated 1st July, 2015

in INDUSTRIAL COURT CAUSE NO. 16 OF 2014)

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JUDGMENT OF THE COURT

The appellants have challenged the ruling of the   Employment and Labour Relations Court delivered on 1st July 2015 (M. Onyango, J.) directing the appellants to immediately reinstate employees of the 2nd appellant and pay all salary withheld; summoning the appellants  to appear in that court; and ordering issue of a warrant   of arrest and punishment by fine in the event of the  appellants’ failure to appear in that court.

In a ruling delivered on 6th November 2014, the  Employment and Labour Relations Court ordered that  the suspension of the  employees of the 2nd appellant be lifted; that the employees be paid the arrears of half  salary that had not been paid since their suspension  from  employment. That court also directed that any   disciplinary process that had to be meted out to the employees be fair, expeditious and should follow due  process.

According to the respondent, the appellants breached the orders given on 6th November 2014. It therefore applied to the court, by a notice of motion dated 7th May 2015, for orders that leave be granted to commence contempt of court proceedings against the   appellants “for disobeying the Honourable Court’s Order issued on 6th November 2014. ” In making that  application, the respondent invoked Sections 12 and 13  of the Employment and Labour Relations Court Act,  2014, Sections 5 and 6 of the Judicature Act and  Articles 47, 50 and 162 of the Constitution of  Kenya. The application was supported    by an affidavit   sworn by David Luttah, an assistant Secretary General of the respondent, who deposed that the appellants had breached the order of the court given on 6th November 2014; that they should be summoned to  appear in court and either comply with the court   order “or be committed to jail term for such contempt.”

The appellants filed separate replying affidavits in opposition to that application deposing, among other things, that the orders given on 6th November 2014  they were accused of breaching had never been served on them.

The manner in which the court dealt with respondent’s   notice of motion dated 7th May 2015 appears from the  impugned ruling itself where the court stated:

“When the application came before me for hearing ex-parte, I directed that instead of the rigorous proceedings of contempt which is intended to punish the contemnors for failing to comply with a court order, the claimant should take the less combative option of summoning the named officials of the respondent to court to explain why they have not complied with the court order.  Summons were subsequently issued and served upon Simon Otieno Adede, Chrispine Pudo, Francis Ochieng Osure, Margaret Awuor Odhiambo, and Samson Omondi Chillo to appear in court today.”

The court then went ahead to make the orders to  which we have already referred. That is the basis on   which learned counsel Mr. Nyawiri appearing for the  appellants complained before us that the procedure  the learned Judge adopted was unfair and unjust; that  the appellants were effectively condemned unheard;   that the principles of natural justice were breached. He  referred us to the constitutional provisions and to  many authorities on the right to a fair hearing,including authorities on the practice and procedure pertaining to contempt of court proceedings, and the  requirements for personal service before a person can be found to be in contempt.

On his part, Mr. Ateka, who represented the  respondent, conceded that the application dated 7th May 2015 was not heard. He however argued that the  procedure adopted by the learned Judge accorded with  Section 20 of the Employment and Labour Relations  Court Act; that the appellants were indeed heard  before the orders complained of were issued; that that court has powers to devise its own procedures; that in  any event the appeal is overtaken by events as the orders given on 6th November 2014 have since been  complied with fully.

In our judgment, there is merit in the appellants’ complaints. The learned Judge was no doubt impelled  by the overriding objective to expeditiously dispose of the matter and took the view that hearing and determining the “rigorous proceedings of contempt” in the nature of the application that was before her  would detract from that objective.  We think that the  Judge fell into error in taking that approach. It is   because of the dire consequences that contempt    proceedings can result in that a rigorous process involving the requirement for leave, for instance, was   put in place. Although we cannot say much at this stage  lest we prejudice the determination of the application   by the lower court, it was incumbent upon the Judge    to deal with the application that was before her. She  did not do so and adopted instead, a process that  resulted in depriving the appellants of an opportunity  to be heard on matters that may well have had an   impact on the orders that the learned Judge made.

For those reasons, we allow the appeal and set aside    the ruling and orders of the court given on 1st July  2015. The notice of motion dated 7th May 2015 shall be  set down for hearing afresh before a Judge of Employment  and Labour Relations Court, other than the Hon. M. Onyango, J.

Considering that the orders appealed from were made by the lower court on its own motion, we think the  appropriate order regarding costs is for each party to bear its own costs of this appeal.

Dated at Kisumu this 12th day of February, 2016.

D. K. MARAGA

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JUDGE OF APPEAL

D. K. MUSINGA

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JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

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DEPUTY REGISTRAR