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ELRCOtherCause No 1265 of 2014· [2014] KEELRC 235 (KLR)

Stephen Mutwiwa Masika & 3 others v Titus W Khaemba & another [2014] KEELRC 235 (KLR)

Industrial Court of Kenya
7 October 2014
MMM. Mbaru
2,522 words in judgment
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The bottom line

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A Kenyan court refused to freeze a trade union's bank account after its General Secretary died, instead ordering the union to fill the gap through its own constitution.

What this practically means

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Executive summary

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This ruling of the Industrial Court at Nairobi (M. Mbaru, J) determined a Notice of Motion dated 4th September 2014 by the 1st Respondent, the Deputy General Secretary of the 4th Claimant Union, seeking to freeze the Union's Barclays Bank account and to be introduced as a signatory following the death of the General Secretary, Simon Kigalu. The 1st Respondent argued that under article 15(e) of the Union Constitution he, as deputy General Secretary and chief executive officer, should exercise the General Secretary's powers, and that the 1st and 2nd Claimants were illegally operating the accounts and risked misappropriating Union funds. The Claimants opposed, contending that freezing the account would paralyse the Union, that the account had sufficient signatories, and that a vacancy in an elective position must be filled by the Central Council. The Court restated that Union property vests in trustees under section 37 of the Labour Relations Act and distinguished 'officers' (employees) from 'officials' (elected). It held rule 15(e) of the Union Constitution unambiguous: the deputy acts for the General Secretary in his absence, but permanent succession is a matter for the Union's organs. Declining to grant the final orders sought, the Court allowed the interim orders of 5th September 2014 to subsist for 30 days, directed the Union to commence modalities within 7 days to address the absence of the General Secretary, set a mention after 14 days, and reserved directions on the main suit after 30 days. Costs were in the cause.

Key legal issues

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01

Whether the Union account should be frozen and the 1st Respondent added as signatory pending hearing

Holding

The Court declined to grant the final orders sought; it maintained interim orders for 30 days and directed the Union to address the absence of the General Secretary through its constitutional organs

Reasoning

The Court held that union funds vest in trustees and are managed by officials and officers on behalf of members under section 37 of the Labour Relations Act. Rule 15(e) of the Union Constitution already empowers the deputy General Secretary to act in the General Secretary's absence, and the Central Council, financial committee and assistants can run the Union. The main suit, filed before the General Secretary's demise, raises weighty issues that must be addressed in priority.

p. 5
02

Interpretation of rule 15(e) of the Union Constitution on succession to the General Secretary

Holding

Rule 15(e) is clear and unambiguous: the deputy General Secretary exercises all rights and powers of the General Secretary in his absence, and the senior most assistant acts in the absence of both

Reasoning

The Court analysed the constitutional scheme of the Union, distinguishing officers (employees) from officials (elected) under the Labour Relations Act. The drafters deliberately provided for the senior most assistant General Secretary to act when both the General Secretary and deputy are absent, showing the roles were not intended to flow automatically into permanent succession. Any ambiguity is for the Union to address.

p. 4

Legal principles established

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  • All property of a registered trade union vests in its trustees for the use and benefit of the union and its members
  • Only the Court can cause orders of immediate application regarding misuse of union funds, breach of which attracts contempt

Court orders

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  1. 1.The interim orders made on 5th September 2014 to subsist for the next 30 days
  2. 2.The 4th Claimant and its officials and/or officers to immediately and not later than 7 days commence modalities for addressing the absence of the General Secretary
  3. 3.Where funds are required for the purpose of meeting the said modalities the same to be made available
  4. 4.Mention after 14 days for parties to record progress on addressing the absence of the General Secretary
  5. 5.After 30 days the Court will give directions with regard to hearing of the main suit
  6. 6.Costs will be in the cause

Authorities

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Legislation

  • Industrial Court Actsections 3 and 12
  • Industrial Court (Procedure) RulesRules 16 and 27
  • Labour Relations Actsections 37, 39 and 41
Jurisdiction invoked
Sections 3 and 12 of the Industrial Court Act, Rules 16 and 27 of the Industrial Court (Procedure) Rules

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, "Stephen Mutwiwa Masika & 3 others v Titus W Khaemba & another [2014] KEELRC 235 (KLR)", Case Analysis (2014). Cause No 1265 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/235/eng@2014-10-07

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