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ELRCDismissedCause Number 532 of 2014· [2015] KEELRC 496 (KLR)

Geoffrey Mareko & 4 others v National General Secretary,Dock Workers Union & another [2015] KEELRC 496 (KLR)

Industrial Court of Kenya at Mombasa
2 October 2015
4,819 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 dismissed a bid to overturn a Dock Workers Union conference, ruling courts should not interfere with unions' internal democratic decisions without strong evidence.

What this practically means

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Executive summary

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The five Claimants, members of the Dock Workers Union, challenged the Special Conference held on 18th October 2014 at which the Union adopted a new Constitution replacing its 2008 Constitution and severed its affiliation from COTU-K in favour of TUC-Kenya. They sought declarations that the notice of 16th September 2014 and the Conference proceedings were nullities, that the amended Constitution be invalidated, and that remittances to TUC-Kenya be stopped. The Respondents maintained that all procedures under the Union Constitution were followed, that the reference to an Annual Conference in the first notice was an error corrected by the circular of 10th October 2014, and that over 2,000 Members had given written instructions to stop deductions to COTU-K. The Court noted this was the third claim by the same parties and law firm aimed at stalling the Union's conferences, following Causes 218 and 348 of 2014, in which the Court had invalidated an earlier circular but permitted a Special Conference upon valid notice. It held that the misdescription of the meeting caused no prejudice, that a Special Conference has all the powers of an Annual Conference, and that the agenda originated from the National Executive Committee. The Claimants failed to establish lack of quorum or representativeness. The Court held it could not invalidate the Conference outcome without hearing the Registrar of Trade Unions, who registered the new Constitution, and no appeal under Section 30 of the Labour Relations Act was filed. The Claim was dismissed with costs to the Respondents.

Key legal issues

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01

Validity of the notice convening the Conference of 18th October 2014

Holding

The misdescription of the meeting as an Annual Conference was an error without prejudice, corrected by the circular of 10th October 2014; parties were never in doubt it was a Special Conference

Reasoning

The Court found the first notice described the meeting as an Annual Conference in error; the subsequent circular of 10th October 2014 clarified it was a Special Conference, in accord with the Ruling in Cause 348 of 2014. The 5th Claimant conceded a Special Conference has the powers of an Annual Conference under the same rules, so the confusion did not affect proceedings or outcome.

p. 6
02

Quorum and representativeness of the Claimants' challenge

Holding

The Claimants failed to establish lack of quorum or that they represented disaffected Members

Reasoning

The Claimants gave no specifics of the required quorum or numbers present; Mareko's reference to 'my People' counting attendees was unsupported by documents. The Respondents produced over 2,000 signed forms of Members wishing to sever COTU-K affiliation, uncontradicted. The Court was unconvinced the Claimants spoke for a good number of Members.

p. 7
03

Effect of registration of the new Constitution by the Registrar of Trade Unions

Holding

The Court cannot invalidate the Special Conference outcome without hearing the Registrar, and no appeal under Section 30 of the Labour Relations Act was filed

Reasoning

The Union filed notices under Section 27 of the Labour Relations Act and the Registrar issued a certificate of change of Constitution. Invalidating the Conference would amount to judging the Registrar's decision without hearing him, and would effectively be a judgment under Section 30 although no appeal against registration was filed. The new Constitution has taken effect.

p. 8
04

Multiplicity of claims and judicial restraint

Holding

Three claims were aimed at stalling a democratic process; courts should not reverse union resolutions for minor infractions

Reasoning

The Court noted the same parties and law firm had filed Causes 218, 348 and 532 of 2014, all aimed at stalling conferences. The Union's internal dispute resolution mechanism was never invoked. Constant judicial intervention destabilises unions, especially where litigants' self-interest is at variance with the democratic will of many Members.

p. 8

Legal principles established

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  • Courts should exercise restraint in interfering with the internal democratic processes of trade unions
  • Trade unions and their members enjoy freedom of association under the Labour Relations Act and Articles 36 and 41 of the Constitution
  • Amendments to a union constitution take effect upon registration by the Registrar of Trade Unions

Court orders

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  1. 1.The Claim is dismissed with costs to the Respondents

Authorities

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Legislation

  • Industrial Court [Procedure] Rules 2010Rule 27 [1] [a]
  • Labour Relations ActSections 4, 8, 27, 27 [6], 30
  • Constitution of KenyaArticles 10, 36, 41

Cases cited (3)

  • James Kisaku & Another v. National General Secretary Dock Workers Union & Another
    [2014] e-KLR
  • Kadilo Mtwana & 80 Others v. Chairman Amalgamated Union of Kenya Metal Workers & 4 Others
    [2014] e-KLR
  • Michael Owino v. James Tong'i & 2 Others
Jurisdiction invoked
Industrial Court [Procedure] Rules 2010, Rule 27 [1] [a] (trade union dispute under the Labour Relations Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Geoffrey Mareko & 4 others v National General Secretary,Dock Workers Union & another [2015] KEELRC 496 (KLR)", Case Analysis (2015). Cause Number 532 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/496/eng@2015-10-02

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