By Wahome Thuku

In these times of judicial reforms and vigilance on hate speech, it’s important to consult a lawyer before opening your mouth in public. That is the hard lesson outspoken Cotu secretary general Francis Atwoli has learned.

In 2010, a dispute arose between tea growing companies in Rift Valley and their employees over decision to introduce tea-plucking machines on farms.

On October 11, that year, Kenya Plantation and Agriculture Workers Union (KPAWU) led by their secretary general Atwoli issued a strike notice to Kenya Tea Growers Association and their members to force them shelve the move.

Atwoli doubles up as Cotu boss. Other officials of KPAWU are Joshua Oyuga, Henry Omasire, Meshack Khisa, Joshua Owuor and David Begi. On October 14, 2010, the tea growers association filed a petition at the High Court arguing that they had a right to mechanise their operations and use plucking machines without consulting the union.

They argued the intended strike notice was an attempt to infringe on their constitutional rights and asked the court to declare the notice unlawful and to order it be withdrawn.

On the same day, the High Court issued an injunction restraining the union, its agents, members or representatives from causing, effecting, inciting or calling for a strike pending hearing and determination of the petition.

The following day, the order was served to worker’s union’s deputy secretary general Thomas Kipkemboi but he refused to acknowledge or receive it. The association and Unilever Tea then informed their workers of the injunction.

Civil jail

On October 18, 2010, Atwoli and Oyuga addressed meetings at Sotik Highlands Primary School grounds, Kapchorua, Tinderet and Kericho Green Stadium.

The officials flew from one venue to the other using a helicopter. During the meetings, Atwoli asked workers to proceed with the strike until he instructed them otherwise.

On October 21, 2010, the association went back to court, this time seeking to have Atwoli and union officials cited for contempt of court and committed to civil jail. High Court Judge Isaac Lenaola heard the application.

The court heard before the meeting at Sotik, Khisa and Begi had driven round the town on a pick-up casting doubt on legitimacy of the court injunction. The workers stopped working at Williamson Tea Estate, causing the company great losses. The strike on October 18 and 19 cost the association members over Sh7.4 million in losses.

Transcripts of Atwoli’s remarks in Kiswahili as recorded during the meetings were produced in court.

One read, “mimi nashukuru mmekuja kwa wingi. Muambie wale wamefungiwa Bwana Atwoli ametuambia kama general secretary wa Kenya Plantation and Agricultural Workers Union tusiende kazini mpaka tusikie kwa radio ametangaza. Tukiungana pamoja ndio tutamaliza hii mambo ya mashine. Na msiwe na uoga kwa ajili mimi niko huko mbele. Don’t fear, mimi ndio nilileta hii katiba pamoja na wenzangu wengine.”

(I thank you for your turn up. Tell those who did not come that Atwoli as Kenya Plantation and Agricultural Workers Union said people should not go to work till they hear from him on radio. If we unite, we can defeat machines. Don’t fear because I am leading you. I and other colleagues brought this Constitution).

In another, he was quoted saying, “Wasinione mimi mfupi hivi wacheze na mimi. Mimi naskia wanatisha hapa watu iko High Court order. Iko nini, siwaje hapa niwasomee sheria ya orders. (Let them not intimidate me because I am short. I hear they are threatening people with a court order, let them come here I lecture them on the law or court orders.)

He then told cheering workers that no other court could hear their dispute except Industrial Court.  In his affidavit sworn on November 29, 2010, Atwoli said he only knew on October 22 that Kipkemboi had been served with an order after he read it in The Standard. He said he did not incite anyone. He only told workers he would take up the issue and told them to be vigilant for the outcome of the case.

He said by the time the injunction was issued, the strike notice was already out. Judge Lenaola affirmed knowledge of a court order is regarded as higher than service of the order.

Evidence in court was clear that Atwoli was not only aware of the order but he even challenged it as having been given by a court with no jurisdiction.

Place to place

It was also clear that Oyuga was present in the meetings but there was no evidence to show the others were there. The judges used Atwoli’s affidavit as confirmation that he had actually known about the order.

“Why else would he admit that he told the workers to be vigilant of the outcome of the case, if he had no knowledge of it and the order issued four days earlier?” Judge Lenaola queried.

The judge concluded that Atwoli was aware of the order when he addressed the meetings. He noted that Atwoli had even gone further to arrogate himself the decision to determine when the strike should end despite having been stopped by the court order.

 “He went further to interpret it as made without jurisdiction and that only “workers court”, (Industrial Court) had jurisdiction to determine the matter,” the judge said. “He did not do so once but on a number of occasions as he flew on helicopter from place to place. His contempt was obvious and his conduct and words can attract no other finding.” Though Oyuga was also there and had known about the order, no witness said he heard him say anything that would amount to denigration of court.

“In all meetings, the star speaker was Atwoli and he (Oyuga) and others were either part of his entourage or his audience. I am unable to find that Oyuga was guilty of contempt as alleged,” the judge said.

Disobeyed order

Atwoli had urged the court to find that his brave action of defending the rights of workers should not attract any finding of contempt.

The judge responded, “He may indeed be brave but when his actions amount to contempt of court, the wrath of the law will be meted on him. It does not matter that he may have been acting for a greater good. Court orders must always be obeyed.”

He went on, “I wholly agree. There is no doubt that Atwoli may have imagined that workers needed the strike for their greater good. But once he disobeyed the order, then he had broken the barrier of illegality with all its consequences.”

With that, the court dismissed the application against the other officials but cited Atwoli for contempt. The judge ordered he appears in court on a date to be agreed by parties for appropriate sentence.

Atwoli is expected in court on September 25 but he may file an appeal against the ruling.

-The writer is a court reporter with the Standard Group

Email: iwahome@standardmedia.co.ke