Nelson Onyango Otho & 5 others v Rashid Jumaa Nyale & another [2014] KEELRC 864 (KLR)

Section 7 of the Civil Procedure Act underpins res judicata, and though the Industrial Court is not bound by that Act, the doctrine applies as a matter of judicial and public policy favouring finality of litigation. However, the prior award in Cause 986 of 2010 was set aside with pleadings struck out because the Claimants' advocate lacked a practising certificate, so no final determination on the merits existed. Cause 2086 of 2011 concerned salary arrears not in dispute here. Pleadings in the prior causes were not exhibited, an omission the Court found unsatisfactory.

The 1st Respondent admitted signing union cheques long after resigning on 27 June 2009 and after his replacement was notified to the Registrar of Trade Unions, at the 2nd Respondent's request. The 2nd Respondent failed to update the bank mandate, called upon a resigned official to sign cheques, made cheques to a third party without National Executive Council or Treasurer involvement as the Union Constitution required, and delayed payment of Kshs 350,000 received for members until they sued. The excuse that the Treasurer refused to cooperate could not stand given constitutional provisions for three of four signatories and removal of errant officials.

Relying on section 47 of the Labour Relations Act and sections 12(1)(g), (3)(iv) and (vii) of the Industrial Court Act, the Court declared the 2nd Respondent unfit to hold the office of General Secretary and removed him forthwith, directing the Registrar of Trade Unions to cause an Annual Conference to elect a new General Secretary. The refund prayer failed because no precise figure was stated; suspension was considered a temporary measure not apt in itself; civil jail was misplaced and unaddressed.