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ELRCPartially AllowedCause No 134 of 2012· [2014] KEELRC 1106 (KLR)

Damson Khisa v Jerry Ole Kina & 2 others [2014] KEELRC 1106 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
9 May 2014
4,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Only the Industrial Court can nullify a Kenyan trade union official's election; union boards cannot, so Danson Khisa's removal was invalid.

What this practically means

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Executive summary

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The claimant, Danson Khisa, was elected Nakuru Branch Secretary of the Union of Kenya Civil Servants in March 2011 and, at a Branch Executive Committee meeting on 19th May 2011, was elected unopposed as Nakuru County Executive Secretary, and was registered as such by the Registrar of Trade Unions on Form Q submitted by the Secretary General. On 11th January 2012 the Union's National Executive Board nullified his county election on the ground that no formal elections were conducted, and fresh elections were held on 1st February 2012 at which the 2nd respondent's witness was elected. The claimant challenged the nullification and the fresh elections. The court adopted eight issues framed by the parties and found that formal elections took place on 19th May 2011; that the electoral college was properly constituted; that the National Executive Board had no power under Article 15 of the Union Constitution or the Labour Relations Act to nullify elections, that power being the preserve of the Industrial Court; that the word 'may' in Section 34(4) of the Act is mandatory in context; that the dual holding of branch and county positions was a transitional situation not affecting validity; and that the 1st February 2012 elections were invalid for want of a vacancy. The court declared the claimant lawfully elected on 19th May 2011, declared the 1st February 2012 elections null and void, declared the branch secretary position vacant upon his county election, prohibited the Registrar from registering changes in that position per Form Q dated 2nd February 2012, and awarded the claimant costs jointly and severally against the 1st and 2nd respondents.

Key legal issues

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01

Whether formal elections of the Executive Secretary Nakuru County took place on 19th May 2011

Holding

Yes - there were formal elections on 19th May 2011 at which the Claimant was elected and subsequently registered, with no dispute raised against the election or registration

Reasoning

The court found a properly convened meeting of the Branch Executive with notice given on 4th May 2011, minutes showing agreement to elect the county secretary and assistant, an unopposed election proposed and seconded, presided over by the Vice Chairman. The results were sent to the Secretary General who filed Form Q, and the Claimant and his deputy were registered and remained on the register. Correspondence showed the Secretary General recognised the Claimant with no dispute raised against the election or registration.

p. 5
02

Whether the National Executive Board had power to nullify the Claimant's election

Holding

No - the Union Constitution confers no such power, and nullification of a union official's election is the preserve of the Industrial Court under Section 34 of the Labour Relations Act

Reasoning

Article 15 of the Union Constitution gives the NEB control and supervision over union officers, but control and supervision is not the same as power to nullify an election. The court reasoned that since no other union organ or the Registrar can nullify elections, the only avenue is the Industrial Court, and in that context 'may' in Section 34(4) is mandatory, drawing on Black's Law Dictionary on the interchangeable use of 'may' and 'shall'.

p. 6
03

Whether the holding of two elective positions (Branch Secretary and County Executive Secretary) invalidated the Claimant's election

Holding

No - the dual positions were a temporary transitional situation arising from the constitutional amendment creating county offices and did not affect the validity of the election

Reasoning

Article 7(11) prohibits holding two elective positions, but the court found the Union itself was aware of the transitional dual holdings, with the Secretary General issuing circulars directing relinquishment of branch positions. The Claimant testified he relinquished the branch position to an acting appointee, uncontested. The Secretary General had caused the Claimant's registration in both positions. The proper remedy for the Union was to conduct fresh branch elections, not to nullify the Claimant's election.

p. 8
04

Whether the elections of 1st February 2012 were valid

Holding

No - there was no vacancy in the position since the nullification of the Claimant's election was invalid, so the elections were null and void

Reasoning

Because the court found the NEB lacked power to nullify the Claimant's election, the position of County Executive Secretary was not vacant on 1st February 2012. Elections held to fill a position with no vacancy were therefore invalid. The court declared those elections null and void and prohibited the Registrar from registering the changes submitted in Form Q dated 2nd February 2012.

p. 8

Legal principles established

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  • No organ of a trade union, including the National Executive Board or the Registrar of Trade Unions, has power to nullify the election of a union official; only the Industrial Court may nullify such an election
  • The word 'may' in Section 34(4) of the Labour Relations Act is mandatory in context, requiring disputes relating to nullification of union elections to be referred to the Industrial Court

Court orders

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  1. 1.Declaration that the Claimant was properly and lawfully elected as the Executive Secretary, Nakuru County on 19th May 2011
  2. 2.Declaration that the position of Branch Secretary held by the Claimant fell vacant upon his election as Executive Secretary Nakuru County by operation of Article 7(11) of the Union's Constitution
  3. 3.Declaration that the elections for the position of Executive Secretary Nakuru County held on 1st February 2012 were null and void as there was no vacancy in that position
  4. 4.Prohibition against the Registrar of Trade Unions registering the changes in the position of Executive Secretary, Nakuru Branch as submitted in Form Q dated 2nd February 2012
  5. 5.The 1st and 2nd Respondents to jointly and severally bear the Claimant's costs of the suit

Authorities

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Legislation

  • Labour Relations ActSections 34(3), 34(4), 35
  • Industrial Court ActSections 15, 12(3)(viii)
  • Constitution of Kenya, 2010promulgation creating counties
Jurisdiction invoked
Section 34 of the Labour Relations Act, 2007 (disputes connected to trade union elections referred to the Industrial Court) read with the Industrial Court 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, "Damson Khisa v Jerry Ole Kina & 2 others [2014] KEELRC 1106 (KLR)", Case Analysis (2014). Cause No 134 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1106/eng@2014-05-09

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