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ELRCDismissedIndustrial Court Cause (Memorandum of Claim dated 6th July 2011; amended Memorandum of Claim filed 15th September 2011)· [2013] KEELRC 247 (KLR)

Alexander Mutinda Peter & another v Registrar of Trade Unions & 4 others [2013] KEELRC 247 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
18 July 2013
MOMAUREEN ONYANGO
3,610 words in judgment
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The bottom line

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Kenya's Industrial Court dismissed a challenge to trade union elections because the losing candidates brought no concrete proof of irregularity.

What this practically means

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Executive summary

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Two branch chairmen of the Kenya Local Government Workers Union challenged the national union elections held on 18th June 2011 at Bandari College, Mombasa, in which the 3rd, 4th and 5th Respondents were elected as Third National Trustee, National Treasurer and Deputy Secretary General respectively. The claimants alleged the three were ineligible candidates and strangers to the elections: the 3rd Respondent was allegedly barred by orders in Industrial Court Causes 354 and 412 of 2011; the 4th Respondent had allegedly ceased membership of Karatina Branch and was in arrears of subscriptions; and the 5th Respondent, a retiree from Mombasa Municipal Council, was allegedly not engaged in the sector contrary to section 31(1) of the Labour Relations Act. They sought nullification of the election and registration of the winners, a permanent injunction, and declarations that they themselves were the bona fide office holders. The court framed three issues: eligibility, irregularity of declaration, and entitlement to relief. It found the claimants produced no proof of the alleged court-order bar (the ruling in Cause 354 of 2011 post-dated the elections by three months), the 4th Respondent proved payment of subscriptions in advance by receipts, and the 5th Respondent qualified under section 31(1) as the serving Assistant National General Secretary. The claimants had raised no complaint or objection with the Registrar of Trade Unions before or after the elections. All prayers were dismissed, with each party ordered to bear its own costs.

Key legal issues

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01

Eligibility of the 3rd Respondent (alleged court-order bar)

Holding

The claimants did not prove the 3rd Respondent was barred or ineligible; the ruling in Industrial Court Cause 354 of 2011 was delivered on 14th September 2011, almost three months after the elections of 18th June 2011.

Reasoning

The claimants produced no copy of the decision in Cause 412 of 2011 and admitted in cross-examination that the order in Cause 354 of 2011 did not affect the national elections. The ruling relied on postdated the elections. The 3rd Respondent was nominated and the claimants did not object to the Registrar.

p. 5
02

Eligibility of the 4th Respondent (arrears and check-off)

Holding

The claimants failed to prove the 4th Respondent was ineligible; he proved payment of subscriptions yearly in advance with receipts for 2009, 2010 and 2011.

Reasoning

The claimants had no membership list for Karatina Branch to confirm arrears. The 4th Respondent produced receipts showing payment at Shs.1,200/= annually before the rate increase, so he was fully paid up by June 2011. Payment of dues was also unchallenged as permissible in cash.

p. 5
03

Eligibility of the 5th Respondent (retired employee not in the sector)

Holding

The 5th Respondent was qualified under section 31(1) of the Labour Relations Act and the union constitution because he was the serving Assistant National General Secretary at the time of election.

Reasoning

Section 31(1) covers persons who are or have been engaged or employed in the sector. He paid subscriptions by check-off, was nominated by five area committees, and his nomination was previously challenged in Cause 907 of 2011 which was dismissed.

p. 6
04

Whether the winners were irregularly declared and registered

Holding

The declaration and registration were not proved irregular; the Registrar acted on notice of the elections, the labour officer's report and a Form Q notice of change of officials under section 35, without any objection.

Reasoning

Both claimants admitted they lodged no complaint, protest or objection with the Registrar before or after the elections, and could not substantiate claims of verbal protest at the venue. The respondents testified there were no protests over their declaration as winners.

p. 6
05

Effect of an unsigned Amended Memorandum of Claim

Holding

Unsigned documents are invalid, but the court made no orders because the respondents did not raise the point and defended the amended claim.

Reasoning

The court noted the amended pleading was unsigned but invoked the principle that invalidity was not taken as an issue; the respondents participated fully in defending the amended memorandum, so the court declined to act on it of its own motion.

p. 7

Legal principles established

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  • A person who is or has been engaged or employed in the sector for which the trade union is registered qualifies for election as an official under section 31(1) of the Labour Relations Act; a serving Assistant National General Secretary qualifies.
  • Election of trade union officials is conducted in accordance with the union's registered constitution, and eligibility and payment of subscriptions are governed by the union's rules.
  • The Registrar of Trade Unions may refuse to register a change of officials if not satisfied as to the validity of the appointment after inquiry.
  • The law does not provide for a successful challenger of an election to be declared the winner; nullification leads to fresh elections.

Court orders

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  1. 1.Prayer (a) for a declaration that the election and registration of the 3rd and 4th Respondents as Third National Trustee and National Treasurer was illegal, irregular, null and void dismissed.
  2. 2.Prayer (b) for a permanent injunction restraining the 3rd and 4th Respondents from assuming office dismissed.
  3. 3.Prayer (c) for a declaration that the 1st and 2nd Claimants are the bona fide Third National Trustee and National Treasurer dismissed.
  4. 4.Each party to bear its own costs.
  5. 5.No orders made in respect of the unsigned Amended Memorandum of Claim since the Respondents did not raise the issue and defended it.

Authorities

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Legislation

  • Labour Relations ActSection 34(1)
  • Labour Relations ActSection 31(1) and 31(4)
  • Labour Relations ActSection 35(3) and 35(4)
  • Labour Relations ActSection 35
  • Labour Relations ActSection 33 (referred to by 2nd claimant)
  • Constitution of Kenya Local Government Workers UnionRule 4 (membership, Rule 4(f) arrears, Rule 4(e) subscriptions) and Rule 21(e)
Jurisdiction invoked
Jurisdiction of the Industrial Court over trade union elections under the Labour Relations Act, 2007 (Sections 31, 34 and 35)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alexander Mutinda Peter & another v Registrar of Trade Unions & 4 others [2013] KEELRC 247 (KLR)", Case Analysis (2013). Industrial Court Cause (Memorandum of Claim dated 6th July 2011; amended Memorandum of Claim filed 15th September 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/247/eng@2013-07-18

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