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ELRCPartially AllowedCause No. 2101 of 2012· [2014] KEELRC 597 (KLR)

Benard A. Ludeshi v Kenya National Security Workers Union [2014] KEELRC 597 (KLR)

Industrial Court of Kenya at Nairobi
4 March 2014
DMD.K. Njagi Marete
4,124 words in judgment
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The bottom line

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A Kenyan union official wrongfully dismissed from a five-year fixed term contract won over Kshs. 4.1 million covering his full unserved term.

What this practically means

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Executive summary

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The claimant, employed as Director of Administration of the respondent union, sued over his removal from that office, alleging unlawful, unfair and unconstitutional termination. He claimed appointment by the Annual Delegates Conference on 8th February 2011 to a five-year constitutionally protected tenure, and relied on a certified copy of the union's constitution to establish a fixed term contract with security of tenure. The respondent denied the claim, contending the claimant's version of the constitution and his appointment letter were forged, that the registered constitution did not provide for the office or its tenure, and that the claimant's departure in September 2011 followed his own letter of early retirement. The court framed six issues. Relying on the testimony of the Registrar of Trade Unions (DW2), the court found the certified copy (Annexture BAL 1/Appendix 8) to be the operative registered constitution, with Appendix 9 being only a proposed, uncertified document. Rule 13 established the office of Director of Administration with a five-year tenure, making the claimant's employment a fixed term contract. The respondent's forgery allegations were unsupported and mere denial. The termination by secretariat officials on 12th September 2011 was ultra vires the constitution and violated Sections 41, 43 and 45 of the Employment Act, 2007, there being no warning, hearing, valid reasons or disciplinary process. The court entered judgment for the claimant, awarding the unserved balance of the fixed term contract totalling Kshs.4,117,809.50, including salary for 4 years and 4 months, leave, service gratuity, unremitted Sacco shares and three months' compensation for unlawful termination, ordered issuance of a certificate of service, and awarded costs to the claimant.

Key legal issues

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01

Which is the operative constitution of the respondent's union?

Holding

The legitimate and current constitution is the certified copy at Annexture BAL 1 and Appendix 8, as confirmed by the Registrar of Trade Unions; Appendix 9 is a proposed, uncertified constitution.

Reasoning

Three versions of the constitution were on record. The claimant produced a certified copy (BAL 1), while the respondent alleged forgery and produced Appendices 8 and 9. DW2, the Registrar of Trade Unions, testified that the constitution adopted on 8th February 2011 was registered on 22nd February 2011 and confirmed the certified copy's authenticity, stating Appendix 9 is a proposed, uncertified document.

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02

Was the claimant's contract a fixed term contract?

Holding

Yes. The operative constitution provides for a five-year tenure with security of tenure for the Director of Administration, constituting a fixed term contract.

Reasoning

Rule 13 of the certified constitution establishes the office of Director of Administration with a five-year tenure. The respondent's allegations of forgery were unsupported by evidence and remained a mere denial. The claimant was appointed to the office, and the constitutional provision on tenure translated into a fixed term contract of employment in law.

p. 5
03

Was the termination wrongful, unfair and unlawful?

Holding

Yes. The termination was ultra vires the union's constitution and offended Sections 41, 43 and 45 of the Employment Act, 2007.

Reasoning

The termination letter of 12th September 2011 was issued by secretariat officials without authority under the constitution, which vests disciplinary power over the Director in the Annual Delegates Conference. The early retirement matter had been shelved and the claimant had rescinded. No warning, hearing, valid reasons or disciplinary process attended the termination. DW1's testimony lacked credibility.

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04

Is the claimant entitled to the relief sought?

Holding

Yes, including compensation for the unserved balance of the fixed term contract and three months' compensation for unlawful termination.

Reasoning

Having found unfair termination under a fixed term contract, the court awarded gross salary for the unserved 4 years and 4 months, leave, service gratuity, unremitted Sacco deductions, and three months' salary as compensation for unlawful termination, plus a certificate of service and costs.

p. 7

Legal principles established

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  • The Registrar of Trade Unions is the authority and custodian of all data relating to trade unions, and a certified copy of a union constitution from that office is the legitimate and current constitution of the union
  • A denial of a document as forgery without evidentiary support remains a mere denial and cannot displace a certified document
  • A constitutional office with a fixed five-year tenure and security of tenure stipulates a fixed term contract in law
  • Termination without warning, notification of hearing, valid reasons or a disciplinary process violates Sections 41, 43 and 45 of the Employment Act, 2007

Court orders

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  1. 1.Award of the balance of unserved term of contract totalling Kshs.4,117,809.50, comprising gross salary for 4 years and 4 months (Kshs.3,224,000.00), leave for five years (Kshs.383,809.50), service gratuity for 5 years (Kshs.310,000.00), Walinzi Sacco shares deducted but not remitted (Kshs.14,000.00) and 3 months compensation for unlawful termination (Kshs.186,000.00)
  2. 2.The respondent be and is hereby ordered to issue a certificate of service to the claimant
  3. 3.The costs of this cause shall be borne by the respondent

Authorities

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Legislation

  • Labour Institutions ActSection 31(1)
  • Employment ActSections 41, 42(1), 43, 44(3), 44(4), 45, 46, 51
Jurisdiction invoked
Jurisdiction of the Industrial Court over employment and labour relations disputes (Labour Institutions Act, 2007); claim filed as a statement of claim under the court's 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, "Benard A. Ludeshi v Kenya National Security Workers Union [2014] KEELRC 597 (KLR)", Case Analysis (2014). Cause No. 2101 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/597/eng@2014-03-04

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