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ELRCPartially AllowedCause No 348 of 2014· [2014] KEELRC 1236 (KLR)

James Kinyunzu Kisaku & another v National General Secretary of the Dock Workers Union & another [2014] KEELRC 1236 (KLR)

Employment and Labour Relations Court
29 August 2014
RSRadido Stephen
2,246 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court declared a union meeting notice invalid because it failed to state the venue and time.

What this practically means

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Executive summary

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Two members of the Dock Workers Union moved the Employment and Labour Relations Court at Mombasa on 31 July 2014 seeking to stop a Special Conference convened for 2 August 2014 by the Union's General Secretary and National Executive Committee. They contended the circular of 12 July 2014 omitted the venue and time of the Conference contrary to the Union's Constitution, that there was no National Executive Committee resolution, that no special circumstances existed, and that the Standing Orders Committee, which should set the agenda, had never been constituted. The Respondents countered that the injunctive threshold had not been met, that the 1st Claimant was not a fully paid-up member, that the port's planned privatisation was a special circumstance, that the Cause was sub judice in Mombasa Cause No. 218 of 2014, and that the Claimants had not exhausted internal dispute-resolution mechanisms. The Court framed five issues but found it unnecessary to determine them beyond the validity of the notice. It held that a valid notice must state the agenda, date, venue and time and issue at least 14 days in advance; the circular failed on venue and time and was invalid. Emphasising Article 41(4), the Court declined injunctive relief as overbroad and moot, instead issuing a declaration of invalidity, leaving the Union free to reconvene upon proper notice. Each party was ordered to bear its own costs.

Key legal issues

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01

Validity of the notice convening the Special Conference

Holding

The Circular of 12 July 2014 was invalid because it did not indicate the venue and time of the Conference, notwithstanding compliance with the 14-day notice rule

Reasoning

Rule 8 of the Union's Constitution required a 14-day written notice after an NEC resolution. The Circular stated the agenda and date but not venue and time. A later Circular of 31 July 2014 disclosed venue and time, but the Court held members spread over Kenya are entitled to know agenda, date, venue and time at least 14 days in advance to exercise their democratic rights. The notice was therefore invalid.

p. 5
02

Whether the notice needed to state it was issued pursuant to an NEC resolution

Holding

No; such resolutions are recorded as minutes of the NEC, which suffices, and the Claimants did not suggest no resolution was passed

Reasoning

Reading rule 8A, the Court held a notice need not recite the NEC resolution. Resolutions are captured in NEC minutes, and the Claimants did not contend the NEC never met or passed a resolution to call the Conference. This ancillary finding supported dismissal of that ground.

p. 4
03

Judicial non-interference in trade union internal affairs

Holding

Courts should give trade unions a margin of appreciation to run their affairs unless there are clear breaches of their constitutions or the law

Reasoning

Relying on Article 41(4) of the Constitution, the Court emphasised that a trade union may determine its own administration, programmes and activities, and that courts should be cautious and interfere only on clear breaches of the union's constitution or statutory provisions. This informed the refusal of overbroad injunctive relief.

p. 5

Legal principles established

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  • A notice convening a Special Conference must set out the agenda, date, venue and time and be issued at least 14 days before the meeting
  • Courts should not interfere with a trade union's internal administration absent clear breaches of its constitution or statutory provisions

Court orders

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  1. 1.A declaratory order that the Circular/Notice convening the Special Conference for 2 August 2014 is/was invalid for not stating the venue and time of the meeting
  2. 2.Declined to grant injunctive relief in lieu of the declaratory order
  3. 3.Declaration that the Union is at liberty to convene a Special Conference at such time it deems fit but after giving a valid notice with the agenda, date, venue and time
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41(4)
  • Labour Relations ActNot specified
  • Dock Workers Union ConstitutionRules 7, 7A, 8, 8A, 8C, clause 28, section 1 of Appendix 2

Cases cited (1)

  • Giella v Cassman Brown & Bros Ltd
Jurisdiction invoked
Article 41(4) of the Constitution and the Union's Constitution; employment and labour relations jurisdiction of the ELRC

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, "James Kinyunzu Kisaku & another v National General Secretary of the Dock Workers Union & another [2014] KEELRC 1236 (KLR)", Case Analysis (2014). Cause No 348 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1236/eng@2014-08-29

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