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ELRCStruck OutNot stated in judgment· [2014] KEELRC 1153 (KLR)

Jophinus Musindi & 7 others National Executive Council Committee Members, acting for Kenya National Union of Nurses v Seth Panyako [2014] KEELRC 1153 (KLR)

Industrial Court of Kenya
10 July 2014
MMM. Mbaru
2,021 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court struck out a claim filed by union officials on behalf of their union because the General Secretary, the authorised officer, was not involved.

What this practically means

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Executive summary

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The respondent, Seth Panyako, General Secretary of the Kenya National Union of Nurses (KNUN), filed a preliminary objection under Rule 14(5) of the Industrial Court Procedure Rules seeking dismissal of a claim and application dated 22nd May 2014 as frivolous, abusive and incurably defective, together with a Notice of Withdrawal of the suit filed on behalf of KNUN. He argued that the claimants (National Executive Council members, including Eunice Gitindi) were not a body corporate and lacked capacity to sue for KNUN; that only the General Secretary, as the authorised officer, could commence or execute documents for the union; and that a rejection of Form Q by the Registrar of Trade Unions could only be challenged by way of appeal to the Court. The claimants countered that they were elected officials entitled to use the union address, had consented to the filing, and that elected officials take office immediately upon election; they urged the court not to be swayed by technicalities under Article 159(2)(d) of the Constitution. The court, applying sections 20 and 22 of the Industrial Court Act and the Labour Relations Act, held that while the 8 claimants retain the right to sue in their own capacity, they cannot sue for and on behalf of KNUN without the intricate involvement of the General Secretary as the authorised officer. Since the respondent had also withdrawn the union's suit, the remaining objections were academic. The court allowed the objection to the extent of striking out the application and claim, with no orders as to costs, while noting the need for internal democratisation within KNUN.

Key legal issues

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01

Capacity of trade union officials other than the authorised officer to sue for the union

Holding

The claim filed by the 8 National Executive Council members for and on behalf of KNUN could not stand without the General Secretary's involvement; the objection was allowed to that extent

Reasoning

Under the Labour Relations Act regime, a registered union acts through its authorised officer. The General Secretary's mandate is intricately involved in every action for and on behalf of the union. The claimants could sue in their own capacity but not as KNUN; filing as KNUN without the authorised officer would be hard to enforce given the statutory mechanisms in the Labour Relations Act.

p. 4
02

Effect of the General Secretary's Notice of Withdrawal of the union's suit

Holding

The court did not need to determine the other objections raised, as the withdrawal notice and the capacity defect rendered further inquiry academic

Reasoning

Because the authorised officer (the respondent himself) had filed a Notice to withdraw the suit filed for and on behalf of the union, delving into the other objections would be moot. The court struck out the claim on the capacity ground alone.

p. 4
03

Internal democratisation and governance of KNUN

Holding

The court observed that the disputes between national officials and the General Secretary revealed weaknesses in the union's democratisation, requiring internal resolution

Reasoning

The court noted the extract from the Registrar of Trade Unions listing current officials and observed that democratisation under the Labour Relations Act preamble was wanting in KNUN, urging that underlying issues be addressed even though it declined to decide the substantive disputes.

p. 4

Legal principles established

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  • Where a claim is made under the entity of a trade union, the authorised officer (General Secretary) must act for the union; other officials may sue individually but not in the union's name without him

Court orders

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  1. 1.Allowed the preliminary objection to the extent of striking out the application and claim filed by the 8 claimants for and on behalf of KNUN
  2. 2.No orders as to costs

Authorities

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Legislation

  • Labour Relations Actsection 21
  • Labour Relations Actsection 19
  • Labour Relations Actsection 30
  • Labour Relations Actpreamble
  • Industrial Court Actsection 20(1)
  • Industrial Court Actsection 22
  • Industrial Court Procedure RulesRule 14(5)
  • Industrial Court Procedure RulesRule 7(a)
  • Industrial Court Procedure RulesRule 23
  • Interpretations and General Provisions Act Cap 2section 2
  • Constitution of KenyaArticle 159(2)(d)
Jurisdiction invoked
Industrial Court Act (sections 20 and 22) and Industrial Court Procedure Rules Rule 14(5); Article 159(2)(d) of the Constitution invoked by the claimants' counsel

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Jophinus Musindi & 7 others National Executive Council Committee Members, acting for Kenya National Union of Nurses v Seth Panyako [2014] KEELRC 1153 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1153/eng@2014-07-10

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