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ELRCAllowedJudicial Review Application No. 1 of 2014· [2016] KEELRC 1820 (KLR)

Aviation & Airport Services Workers Union v Registrar of Trade Unions & another [2016] KEELRC 1820 (KLR)

Employment and Labour Relations Court
15 January 2016
1,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a union's withdrawn case because the man who pulled it out was never properly registered as its leader, and made him pay the costs personally.

What this practically means

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Executive summary

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The applicant union, Aviation & Airport Services Workers Union, moved the Court by notice of motion dated 19th May 2015 seeking to set aside a consent order of 13th October 2014 by which its Judicial Review Application No. 1 of 2014 was withdrawn and the file marked closed. The union contended that Mr. Rob B. Abkula, who appeared and consented to the withdrawal, was not its Secretary General and acted without instructions, in collusion with counsel for the 2nd respondent, and with material non-disclosure. Mr. Abkula countered that he was acting General Secretary following the suspension of Mr. Bonne Nicholas Barasa and other officials by the NEC on 1st March 2014. The Court found that the Registrar of Trade Unions had not endorsed the NEC changes to the register of officials, and a court order in Industrial Cause No. 68 of 2014 at Kisumu, with interim orders granted on 2nd April 2014, restrained the Registrar from effecting those changes. Mr. Abkula's purported appointment was evidenced only by an unauthenticated handwritten insertion in the minutes. Accordingly, Barasa remained Secretary General on 13th October 2014 and Abkula had no authority to compromise the suit, facts which were not disclosed to the Court. The preliminary objections by the 2nd respondent were dismissed as technicalities. The Court allowed the application, set aside the consent order, reinstated the suit, and ordered Mr. Abkula to personally bear the costs for misrepresenting his status and material non-disclosure.

Key legal issues

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01

Authority to represent the union and act in court

Holding

As at 13th October 2014, Mr. Rob B. Abkula had not been officially recognized as acting Secretary General; the duly registered Secretary General remained Bonne Nicholas Majimbo Barasa, so Abkula had no authority to withdraw the suit.

Reasoning

The Registrar of Trade Unions, the 1st respondent, had not endorsed the NEC changes of 1st March 2014 to the register of officials, trustees and committee members, and a court order in Industrial Cause No. 68 of 2014 restrained the Registrar from effecting those changes. The handwritten insertion of Abkula's name as acting General Secretary on the minutes was unauthenticated. He therefore misrepresented his status when appearing on 13th October 2014.

p. 3
02

Material non-disclosure and collusion in recording the consent withdrawal

Holding

The withdrawal of JR No. 1 of 2014 was procured without disclosure of the pending leadership dispute and interim orders, amounting to misrepresentation, and the consent order was set aside with the suit reinstated.

Reasoning

There were pending proceedings in Industrial Cause No. 68 of 2014 at Kisumu with interim orders granted on 2nd April 2014 concerning registration of union officials. These matters were not disclosed when Abkula purported to compromise the application. The applicant alleges collusion, misrepresentation and fraud to defeat justice. The court found these omissions disentitled Abkula from acting for the union and justified setting aside the consent order.

p. 3
03

Preliminary objections by the 2nd respondent

Holding

The preliminary objections were dismissed as technicalities detracting from the substance of the application.

Reasoning

Mr. Okwe Achiado for the 2nd respondent raised preliminary objections, but the court held they were mere technicalities. The substantive complaint concerned Abkula's misrepresentation of his authority; the replying affidavit of Moses Ndiema for the 2nd respondent did not address this. The objections were therefore not upheld.

p. 3

Legal principles established

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  • A person not officially recognized as a union official cannot validly compromise or withdraw a suit on behalf of the union; a consent order so obtained on undisclosed material facts will be set aside.
  • Material non-disclosure and misrepresentation of authority when recording a consent order vitiate that order and attract personal costs against the offending advocate/official.

Court orders

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  1. 1.The application to set aside the consent order of the Court entered into on 13th October 2014 is allowed
  2. 2.The suit (Judicial Review Application No. 1 of 2014) is reinstated
  3. 3.Costs of the application to be borne by Mr. Rob B. Abkula in person

Authorities

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Legislation

  • Labour Relations ActSection 30
Jurisdiction invoked
Supervisory jurisdiction of the Employment and Labour Relations Court over judicial review proceedings transferred to it (application founded on Section 30 of 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, "Aviation & Airport Services Workers Union v Registrar of Trade Unions & another [2016] KEELRC 1820 (KLR)", Case Analysis (2016). Judicial Review Application No. 1 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1820/eng@2016-01-15

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