Jophinus Musundi & 6 others v Kenya National Union of Nurses & another [2016] KEELRC 943 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Whether the reliefs sought were overtaken by events
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
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.
Whether the suits were an abuse of court process due to collusion between the claimants and the 3rd to 9th respondents
The court accepted there was an attempt, in collusion, to circumvent the amendment procedure, and dismissed the suits
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.
Legal principles established
#- 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
#- 1.The consolidated suits 1447/2014, 1454/2014 and 1545/2014 are dismissed
- 2.Costs awarded against the Claimants jointly and severally
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over trade union disputes under the Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.