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ELRCDismissedCause No. 1447 of 2014 (as consolidated with Cause Nos. 1454/2014 and 1545/2014)· [2016] KEELRC 943 (KLR)

Jophinus Musundi & 6 others v Kenya National Union of Nurses & another [2016] KEELRC 943 (KLR)

Employment and Labour Relations Court of Kenya
15 July 2016
2,642 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to rewrite a nurses' union's constitution, ruling members must change it themselves through the proper amendment process.

What this practically means

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Executive summary

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This consolidated claim, led by Cause No. 1447 of 2014, was brought by seven officials/members of the Kenya National Union of Nurses against the union and its General Secretary, Seth Panyako. The claimants sought dissolution of the National Executive Council, fresh elections, and the appointment of a caretaker committee to review the union constitution and organise elections. They contended that provisions of the union constitution governing elections (Chapters XVIII and XIX) were discriminatory and contravened Article 41 of the Constitution of Kenya 2010 and the Labour Relations Act 2007, including clauses barring officials of other associations, high nomination fees, five-year leadership experience requirements, and exempting founding officials from inaugural elections. The respondents countered that the suit stemmed from internal wrangles, that the 3rd to 9th respondents had colluded with the claimants in an abuse of court process, and that the reliefs had been overtaken by elections held on 29th August 2014 and gazettement of officials on 10th September 2014. The court framed two issues: whether the reliefs were overtaken by events and whether the impugned constitutional provisions should be nullified. It held that the claimants had not invoked the amendment procedure in section 27 of the Labour Relations Act and Chapter XXII of the union constitution, that union constitutions are changed by members' resolutions and not by court fiat, and that the impugned clauses did not offend the Constitution. The court declined to appoint a caretaker committee, a creature unknown to the union constitution, and held the suit overtaken by events, including subsequent 2016 elections. The consolidated suits were dismissed with costs against the claimants jointly and severally.

Key legal issues

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01

Whether the impugned provisions of the union constitution (Chapter XVIII ss. 5, 8, 9, 11 and Chapter XIX s. 5) contravene the Constitution of Kenya 2010 and the Labour Relations Act 2007

Holding

The court was not satisfied that the impugned clauses offended the Constitution of Kenya 2010; the proper route for change is the amendment procedure in the union constitution and section 27 of the Labour Relations Act

Reasoning

The court held that the claimants had adduced no evidence that they pursued the amendment procedure under section 27 of the Labour Relations Act and Chapter XXII of the union constitution. Members who wish to change election provisions must follow their own constitution. The court refused to take over the collective responsibility of members to alter their governing document, and found the suit a collusion to circumvent that procedure.

p. 6
02

Whether the reliefs sought were overtaken by events

Holding

Yes - elections of union officials had been held on 29th August 2014 and officials gazetted on 10th September 2014, and further elections had been held in 2016

Reasoning

The respondents demonstrated that elections were held on 29th August 2014 at a National Governing Council meeting which the claimants were invited to but did not attend, and the officials were gazetted by extract of 10th September 2014. The court also took judicial notice of subsequent 2016 elections and pending litigation over them, rendering the suit moot.

p. 6
03

Whether the suits were an abuse of court process due to collusion between the claimants and the 3rd to 9th respondents

Holding

The court accepted there was an attempt, in collusion, to circumvent the amendment procedure, and dismissed the suits

Reasoning

The respondents argued that the 3rd to 9th respondents, who never filed responses, colluded with the claimants to file a multiplicity of suits to remove the General Secretary. The court found the suit was an attempt to circumvent the statutory and constitutional amendment procedures, supporting dismissal with costs against the claimants jointly and severally.

p. 5

Legal principles established

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  • Union constitutions are amended by members' resolutions with the concurrence of the Registrar of Trade Unions, not by order of the court
  • A court will not descend into the internal affairs of a union where members have a clear constitutional procedure for amendment

Court orders

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  1. 1.The consolidated suits 1447/2014, 1454/2014 and 1545/2014 are dismissed
  2. 2.Costs awarded against the Claimants jointly and severally

Authorities

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Legislation

  • Constitution of Kenya 2010Article 41; Article 24; Article 2
  • Labour Relations Act 2007Sections 4, 5, 27, 34(2)

Cases cited (1)

  • Eleur Investment Ltd Vs Permanent Secretary Ministry of Roads and 4 others
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade union disputes under the Labour Relations Act, 2007

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, "Jophinus Musundi & 6 others v Kenya National Union of Nurses & another [2016] KEELRC 943 (KLR)", Case Analysis (2016). Cause No. 1447 of 2014 (as consolidated with Cause Nos. 1454/2014 and 1545/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/943/eng@2016-07-15

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