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ELRCDismissedCause Number 586 of 2014· [2015] KEELRC 543 (KLR)

Michael Owino & another v James Onkoba Tongi & 2 others [2015] KEELRC 543 (KLR)

Industrial Court of Kenya
4 September 2015
JRJames Rika
1,805 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This dispute arose from the election of James Tongi as General Secretary of the Kenya Shipping, Clearing, & Warehouses Workers Union at an Annual Conference held on 19th October 2014. The conference followed a decree in Cause No. 30 of 2012 in which the Industrial Court removed the then General Secretary, Mr. Robert Abwoga, and ordered the Registrar of Trade Unions to direct a fresh Annual Conference. The Claimants, the Assistant General Secretary and a union member, sought declarations that the conference and its outcome were null and void, that Tongi was unfit to hold office due to a conviction for fraud and dishonesty in Cause No. 251 of 2014, and that a fresh conference be held. They alleged the conference violated the Union's constitution on notice, venue, delegate legitimacy and quorum. The 1st and 2nd Respondents maintained the conference was convened in obedience to the Court's order and the Registrar's directive, with notice, venue and delegate structure in accordance with the constitution, and that the 1st Claimant deliberately stayed away to destabilize quorum. The Registrar did not participate. Finding the matter fully dispositive on the pleadings and submissions, Rika J delivered an Award rather than an interim ruling. The Court held the conference substantially complied with the constitution; any departures were minor and not fundamental. It observed both Claimant and Respondent had been found wanting in other proceedings, and that constant judicial nullification of union elections destabilizes the trade union movement as much as undemocratic practices. The Claim and application were dismissed in their entirety with no order on costs, and the 1st Claimant was left to challenge Tongi at the 2016 elections.

Key legal issues

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01

Compliance of the Annual Conference with the Union's constitution

Holding

The conference was held largely in conformity with the Court order, the Registrar's directive and the Union's constitution; any minor departures were not fundamental

Reasoning

Notice initially issued on 30th August 2014 for a conference on 12th October 2014, satisfying the six weeks' notice requirement, and the postponement to 19th October removed any lingering doubts. The venue (Shauri Moyo YMCA hall) was named in the extension letter and a hiring receipt was exhibited. The Claimant and his Changamwe delegates deliberately stayed away, so quorum complaints were self-inflicted.

p. 3
02

Suitability of the 1st Respondent to hold office

Holding

The alleged conviction for fraud was not a bar; both the 1st Claimant and the 1st Respondent had been found wanting, and the membership had not accepted that such findings bar either from office

Reasoning

There were proceedings in different courts where both Tongi and Owino were found to have acted below the expectations of the Union's constitution. The Court characterized the Claimant's submission as a case of the pot calling the kettle black and held suitability was never truly in issue.

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03

Legitimacy of the delegates and quorum

Holding

The complaint about delegates was without merit; representation was in accordance with the constitution and objections should have been raised before or during the conference

Reasoning

Branches were represented and the structure of representation accorded with the constitution. Whether delegates worked in the shipping industry could not be questioned long after the conference. The 1st Claimant stayed away with his Changamwe delegates, possibly to destabilize the quorum requirement and build a case against the conference's legitimacy.

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04

Judicial restraint in trade union internal disputes

Holding

The Court declined to declare the election invalid, holding that constant judicial nullification of union elections is as destabilizing as undemocratic practices, and directed the Claimant to pursue his ambitions at the 2016 elections

Reasoning

Trade unions must not be embroiled in leadership wrangles; the 2nd Respondent had brought no case on behalf of workers, only leadership disputes. The Claim was essentially a fight for power, and minor infractions of internal constitutions should not be harshly punished by reversing electoral outcomes.

p. 3

Legal principles established

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  • Courts should not nullify trade union elections for every minor departure from internal constitutions; only fundamental breaches warrant invalidation
  • Judicial intervention in union leadership disputes destabilizes the Trade Union Movement just as undemocratic practices do

Court orders

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  1. 1.The Claim and the Application filed by the Claimants are dismissed in their entirety
  2. 2.No order on the costs

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
Jurisdiction invoked
Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010

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, "Michael Owino & another v James Onkoba Tongi & 2 others [2015] KEELRC 543 (KLR)", Case Analysis (2015). Cause Number 586 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/543/eng@2015-09-04

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