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ELRCDismissedPetition No. 54 of 2016· [2018] KEELRC 1208 (KLR)

Stephen Sadia Onyango v Kenya Union of Printing, Publishing, Paper Manufucturers, Pulp & Packaging Industries (Kupripupa) & 2 others [2018] KEELRC 1208 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
20 April 2018
MMM. Mbaru
2,376 words in judgment
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The bottom line

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Kenya's Employment Court upheld KUPRIPUPA's 2016 branch elections, ruling a second election meeting can proceed without quorum under the union's own rules.

What this practically means

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Executive summary

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The petitioner, a member of KUPRIPUPA, petitioned the Employment and Labour Relations Court seeking a mandatory injunction restraining the respondents from conducting union affairs until a repeat election, and a declaration that the Nairobi branch elections held on 28th February 2016 were unconstitutional, null and void. He alleged the elections lacked the one-third quorum required by Rule 16(d) of the union constitution, that non-members and members in arrears were allowed to vote and vie contrary to the Labour Relations Act, 2007 and the union constitution, and that a candidate who had not applied for a position was permitted to contest. The respondents, through the General Secretary Rajab Wellington Mwondi, replied that the first election on 31st January 2016 aborted due to chaos, that a second election was properly convened for 28th February 2016 which under Rule 16(d) required no quorum, that all participants were fully paid up members, and that Form Q was duly filed with the Registrar of Trade Unions. The court framed two issues: whether the respondents adhered to the union constitution in holding the elections, and whether the orders sought should issue. Holding that Rule 16(d) permits a second meeting to proceed without quorum where the first failed, and that the general secretary's records are the authoritative record of membership absent proof of forgery, the court found the elections lawful and dismissed the petition, with each party bearing its own costs. Judgment was read in open court at Nairobi on 20th April 2018 by M. Mbaru, J.

Key legal issues

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01

Whether the branch elections of 28th February 2016 complied with Rule 16(d) of the union constitution and section 34 of the Labour Relations Act, 2007

Holding

The elections were proper and lawful; a second election convened after the first aborted does not require the one-third quorum

Reasoning

Rule 16(d) requires quorum of one third of branch members for an election meeting, but also provides that where quorum is not realised at the first meeting, the members present at the second meeting shall proceed. The first election on 31st January 2016 aborted due to chaos; a second notice was issued and the election of 28th February 2016 was therefore a second meeting under the rule and was lawful. Section 34 requires elections be conducted per the union constitution, which was done.

p. 3
02

Whether non-members or members in arrears participated in the elections, rendering them a nullity

Holding

No evidence supported the petitioner's allegations; those who participated were eligible members

Reasoning

The general secretary is the lawful custodian of union records. Mr Mwondi's affidavit confirmed participants were fully paid up members. The petitioner did not state the source of his contrary records, and without evidence that the official membership record was a forgery, the court accepted that all participants in the 28th February 2016 elections were eligible.

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Legal principles established

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  • Where a first branch meeting fails to attain quorum, a properly convened second meeting under Rule 16(d) of the union constitution may proceed to hold elections without quorum
  • The general secretary of a trade union is the lawful custodian of union records, and the court must rely on the general secretary's records in challenges to membership and payment of subscriptions

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 36(1), (2)
  • Constitution of Kenya, 2010Article 47(1), (2)
  • Labour Relations Act, 2007Section 34(1)
  • Labour Relations Act, 2007Section 33(c)
  • Labour Relations Act, 2007Section 2
  • Constitution of KUPRIPUPARule 9(b)(ii), 16(d) and 22(d)
  • Constitution of KUPRIPUPARule 5(f)
  • Constitution of KUPRIPUPARule 16

Cases cited (2)

  • Alexander Mutinda Peter and another v the Registrar of Trade Unions and 4 others
    Cause No.1103 of 2011
  • Jim Mhalapo Masege v the Secretary General, Aviation and Allied Workers Union and another
    Cause No.161 of 2011
Jurisdiction invoked
Constitution of Kenya, 2010 Articles 36(1), (2) and 47(1), (2); Labour Relations Act, 2007 sections 34(1) and 33(c)

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, "Stephen Sadia Onyango v Kenya Union of Printing, Publishing, Paper Manufucturers, Pulp & Packaging Industries (Kupripupa) & 2 others [2018] KEELRC 1208 (KLR)", Case Analysis (2018). Petition No. 54 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1208/eng@2018-04-20

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