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ELRCDismissedPetition (concurrent with Notice of Motion dated 13th February 2015)· [2016] KEELRC 1372 (KLR)

David O. Odunga & 69 Others v Secretary General Acting For the Kenya Union of Commercial, Food And Allied Workers & another [2016] KEELRC 1372 (KLR)

Employment and Labour Relations Court
8 April 2016
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioners, employees of Nakumatt Holdings Limited (2nd respondent) and paid-up members of the Kenya Union of Commercial Food and Allied Workers (1st respondent), served as shopstewards and as Chairman and Secretary of the Central Staff Committee. By a letter of 23rd January 2015 and an internal memo of 3rd February 2015, their accreditation as shopstewards and staff committee officials was withdrawn. Concurrently with the petition, they moved the court by Notice of Motion dated 13th February 2015 seeking an order to vacate and quash the withdrawal decision and prohibitory orders restraining the 1st respondent from interfering with their rights. The 1st respondent opposed, contending the petitioners lacked authority to file for the other petitioners, some petitioners had disowned the suit, and that the 1st and 2nd petitioners were openly promoting a rival union, the Kenya Supermarket Workers Union, whose registration the Registrar of Trade Unions had declined, prompting an appeal to the court. The court held that interlocutory remedies are discretionary and require clean hands; that interlocutory mandatory injunctions issue only in exceptional cases; and that while Articles 36 and 41 protect freedom of association, the petitioners could not claim constitutional protection while remaining members and officials of a union whose interests they competed against. The honourable course was to resign first. The application was dismissed with costs on 8th April 2016.

Key legal issues

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01

Whether the petitioners deserved interlocutory mandatory injunction to quash withdrawal of their union accreditation and staff committee positions

Holding

The application was dismissed; interlocutory mandatory injunctions issue only in exceptional cases and the petitioners failed the clean hands test.

Reasoning

The court held that interlocutory remedies are discretionary and require good faith and clean hands. The petitioners, while Chairman and Secretary of the Central Staff Committee and shopstewards of the 1st respondent, openly formed and sought registration of a rival union, Kenya Supermarket Workers Union, even appealing the Registrar's refusal to register it. The honourable course was to resign from the union first.

p. 4
02

Scope of constitutional freedom of association (Articles 36 and 41) in relation to union membership

Holding

The right to form a rival union exists but cannot be exercised while remaining a member, especially as a shopsteward, of the union being competed against.

Reasoning

Articles 36 and 41 protect the right to form, join and participate in trade union activities, but that protection cannot be claimed by a person simultaneously championing a rival union that injures the interest of the union whose member he is. Membership obliges the member to espouse, promote and defend the union's core values and principles.

p. 4

Legal principles established

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  • Interlocutory mandatory injunctions are granted only in exceptional cases because they effectively determine the main claim
  • A member of a union cannot claim constitutional protection of freedom of association while engaging in activities that compete with or injure the interests of that union
  • Equitable interlocutory remedies require good faith and clean hands

Court orders

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  1. 1.The application dated 13th February 2015 is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 36
  • Constitution of Kenya, 2010Article 41
Jurisdiction invoked
Articles 36 and 41 of the Constitution (freedom of association and labour relations) invoked in an employment and labour relations petition; specific statutory provision not stated

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, "David O. Odunga & 69 Others v Secretary General Acting For the Kenya Union of Commercial, Food And Allied Workers & another [2016] KEELRC 1372 (KLR)", Case Analysis (2016). Petition (concurrent with Notice of Motion dated 13th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1372/eng@2016-04-08

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