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ELRCPartially AllowedIndustrial Cause No. 1325 of 2011· [2012] KEELRC 40 (KLR)

GEOFFREY IRUNGU V KENYA UNION OF POST PRIMARY EDUCATION TEACHERS & ANOTHER [2012] KEELRC 40 (KLR)

Industrial Court of Kenya
13 November 2012
HWHellen Wasilwa
5,041 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court freed KUPPET's frozen account, ruled union dues must go into designated branch accounts, and ordered a Registrar-led audit to establish what was owed.

What this practically means

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Executive summary

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The claimants, officials of the Kiambu County Branch of KUPPET endorsed under a consent order of 26th January 2012, moved the court by Notice of Motion dated 2nd August 2012 seeking attachment of the National Union's Equity Bank account and release of Kshs.4,770,596 in alleged unremitted branch dues. Ex parte freezing orders issued on 3rd August 2012. The 1st Respondent opposed, denying the debt, asserting payments had been made up to May 2012 pursuant to a February 2012 agreement, claiming exposure to fines on cheques already issued, and arguing the application was an abuse of process given several similar suits by Peter Mwaura Kamau. An advocate for other branch officials also opposed, contending the applicants had been suspended and lacked authority. The court framed five issues: the lawful officials, the branch account, whether remittances were made to it, whether funds were handled by the right persons, and the outstanding amount. It held the consent-order officials remained lawful since the interim orders reversing that position had lapsed under Rule 16(8)(b) of the Industrial Court (Procedure) Rules; that remittances had been paid to individuals and a non-designated Equity Thika account contrary to Section 50 of the Labour Relations Act; and that the true outstanding amount could only be established by an audit. The garnishee prayer was rejected and the frozen account released; an audit by the Registrar of Trade Unions was ordered, with each party bearing its own costs.

Key legal issues

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01

Who are the lawful officials of the Kiambu County Branch of KUPPET

Holding

The officials endorsed in the consent order of 26th January 2012 remain the lawful officials, since the interim orders of 11th April 2012 purporting to reverse that position lapsed and the consent order was never vacated or reviewed

Reasoning

The court held the consent order formed part of the court record and remained operative. The ex parte injunction granted on 11th April 2012 had lapsed under Rule 16(8)(b) of the Industrial Court (Procedure) Rules 2010, which forbids extension of ex parte orders. Any grievance against the officials should have been taken back to the court that endorsed the consent, not resolved by suspension at a branch meeting.

p. 8
02

Whether KUPPET Headquarters complied with its obligations to remit branch funds

Holding

KUPPET Headquarters acted without due regard to procedure; some funds were paid to individuals rather than into the designated branch account, contrary to Section 50 of the Labour Relations Act, but the exact shortfall required an audit

Reasoning

The bank statement showed only two cash withdrawals traceable to the Kiambu branch, and payment schedules showed funds directed to individuals and to an Equity Thika account that was not the designated account. Section 50 of the Labour Relations Act mandates payment of check-off dues into a designated account. Because some branch officials benefited from the irregular payments, the court declined to open a full inquiry and ordered an audit instead.

p. 9

Legal principles established

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  • Monies deducted from members' wages for a trade union must be paid into a designated trade union account as required by Section 50 of the Labour Relations Act
  • An ex parte order under the Industrial Court (Procedure) Rules 2010 may be granted once for fourteen days and shall not be extended; an extended ex parte order lapses

Court orders

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  1. 1.The officials of Kiambu County Branch of KUPPET as per the consent order do open an account as agreed upon in the consent order of 26th January, 2012
  2. 2.An audit be done by the Registrar of Trade Unions as to funds remitted to the Kiambu branch by KUPPET Headquarters and a report be submitted to court within two weeks
  3. 3.The prayer to garnishee the account of the 1st Respondent is rejected and the frozen account is freed
  4. 4.Parties to appear in court in two weeks to report on the audit and the new account opened; if the parties cannot agree on leadership, fresh elections to be held within six months
  5. 5.Each party to bear its own costs

Authorities

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Legislation

  • Labour Relations ActSection 50
  • Labour Relations ActSection 50(6)
  • Industrial Court (Procedure) Rules 2010Rule 16(8)(b)
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010; Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "GEOFFREY IRUNGU V KENYA UNION OF POST PRIMARY EDUCATION TEACHERS & ANOTHER [2012] KEELRC 40 (KLR)", Case Analysis (2012). Industrial Cause No. 1325 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/40/eng@2012-11-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.