Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedIndustrial Cause No. 155 of 2014 (ruling on applications dated 28th April 2015 and 11th May 2015)· [2015] KEELRC 833 (KLR)

Stephen Mutwiwa Masika & 3 others v Titus W Khaemba & another [2015] KEELRC 833 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
4 June 2015
MMM. Mbaru
5,710 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed Dan Mihadi's election as union secretary general, refused to join disgruntled officials, and held the union's lawsuit could continue.

What this practically means

#

Executive summary

#
This ruling of the Industrial Court at Nairobi (Mbaru J) disposed of two contested interlocutory applications arising from a leadership dispute in the Transport Workers' Union - Kenya. Six members of the Union's Central Council sought to be enjoined as Interested Parties and to annul the meeting and elections of 23rd April 2015 at which Dan Mihadi was elected General Secretary, and to restrain the Registrar of Trade Unions from registering the resultant resolution and Form Q. The Claimants, in turn, sought to substitute Mihadi for the deceased 3rd claimant (Simon Kigalu) and to amend the pleadings. The 1st Respondent, Titus Khaemba, opposed both, contending the elections were unlawfully convened in breach of Court orders. The Court applied the test for joinder of Interested Parties (identifiable stake or legal interest) and held the applicants' interests were already represented by the Claimants, refusing the joinder. It found the allegations against Quincy Musembe's eligibility and payment of subscriptions unsubstantiated against official returns showing him as Assistant Secretary General since 19th March 2011. Relying on the Deputy Registrar's supervision report, it confirmed the 23rd April 2015 election of Dan Mihadi effective that date, vacated the orders of 5th September and 7th October 2014, and declined both applications. It held the suit could survive without substitution, the elected General Secretary being competent to authorise officials to prosecute it. Costs were ordered to be in the cause.

Key legal issues

#
01

Whether the Intended Interested Parties should be joined

Holding

Joinder refused; their interests are already represented by the Claimants who act in their official capacities for the Union

Reasoning

The applicants are members of the Central Council with voting rights within the Union's internal structures. The Claimants already represent the Union as corporate representatives, and the applicants can protect their interests at Central Council meetings where they hold voting power. No interest was expressed in the suit since July 2014 until the contested election arose. Caution in joinder is required where the existing parties object.

p. 7
02

Whether Quincy Musembe's appointment should be annulled and whether he was eligible to vote

Holding

No basis to set aside his membership; the official returns confirm his position as Assistant Secretary General since 19th March 2011 and the arrears allegations were unsubstantiated

Reasoning

The Registrar's returns of 3rd July 2013, 28th January 2015 and 16th April 2015 consistently record Musembe as Assistant Secretary General. Removal of a Central Council member requires a two-thirds vote under Rule 12(c) read with Rule 13(f). Evidence of non-payment or a list of paid-up members was not attached; only general averments were made. Had there been ambiguity in the Union constitution, section 33 of the Labour Relations Act would resolve it.

p. 8
03

Whether the Registrar should be restrained from registering the resolution and Form Q of 23rd April 2015

Holding

No; the Court confirmed the election of Dan Mihadi as secretary general effective 23rd April 2015 and vacated the orders of 5th September and 7th October 2014

Reasoning

The meeting and elections of 23rd April 2015 were supervised by the Court's Deputy Registrar and a Labour Officer, whose report the Court adopted. Quorum was confirmed. The 1st Respondent failed to comply with the earlier directions to call a meeting in 7 days, and the process could not stall at his will when he was present and opted not to participate.

p. 8
04

Whether the 3rd claimant should be substituted and the pleadings amended

Holding

Application declined; the suit can survive without substitution and the elected secretary general can authorise officials to continue the suit

Reasoning

The Claimants were not blameless, having been twice put on notice to address the absence of the 3rd claimant. The necessity to substitute or amend having been lost, the suit can survive the 3rd respondent. Outstanding issues can be addressed by the other Claimants granted the requisite authority by the now-elected general secretary.

p. 9

Legal principles established

#
  • An Interested Party is a person or entity with an identifiable stake or legal interest or duty in the proceedings but not a party to them
  • Where an official record shows a person as a Union official, allegations of ineligibility or arrears must be substantiated with evidence before membership can be set aside
  • A party who is present at a properly convened and quorate meeting but opts not to participate cannot later hold the outcome at ransom
  • The general secretary is the officer of the Union who must move in litigation on behalf of the Union or authorise others to sue

Court orders

#
  1. 1.The application dated 28th April 2015 by the Intended Interested Parties is declined
  2. 2.The application dated 11th May 2015 for substitution and amendment is declined
  3. 3.The election of Dan Mihadi as secretary general is confirmed effective 23rd April 2015
  4. 4.The orders made on 5th September 2014 and 7th October 2014 are vacated
  5. 5.Costs shall be in the cause

Authorities

#

Legislation

  • Industrial Court Actsection 12
  • Industrial Court (Procedure) RulesRule 16
  • Industrial Court (Procedure) RulesRule 18(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules, 2013definition of 'Interested Party'
  • Civil Procedure RulesOrder 1 rule 10(2)
  • Labour Relations Actsections 31, 33 and 34
  • Transport Workers Union ConstitutionRules 11(c), 11(e), 12(c), 13(f) and 24

Cases cited (4)

  • Mathia Njoka Ngala & Others versus Kenya Private Security Workers Union & Another
    Cause No. 2212 of 2014
  • Supermarine Handling Services Ltd vs Commissioner General, Kenya Revenue Authority
    (2002) 2 KLR 758
  • Judicial Service Commission versus Speaker of the National Assembly & 7 Others
    Petition No. 518 of 2013
  • Communications Commission of Kenya and 4 others versus Royal Media Services limited and 7 Others
    [2014] eKLR
Jurisdiction invoked
Section 12 of the Industrial Court Act and the Industrial Court (Procedure) Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Stephen Mutwiwa Masika & 3 others v Titus W Khaemba & another [2015] KEELRC 833 (KLR)", Case Analysis (2015). Industrial Cause No. 155 of 2014 (ruling on applications dated 28th April 2015 and 11th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/833/eng@2015-06-04

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