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ELRCDismissedPetition Number 12 of 2017· [2018] KEELRC 2333 (KLR)

Noah Rotich & 6 others v Union of Kenya Civil Servants & another [2018] KEELRC 2333 (KLR)

Employment and Labour Relations Court
23 February 2018
6,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a civil servants' union election, ruling minor procedural complaints can't overturn results where no substantive breach affected the outcome.

What this practically means

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Executive summary

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The Petitioners, unsuccessful candidates and electors, challenged the national elections of the Union of Kenya Civil Servants held on 27th October 2016 at Nyali Beach Hotel, Mombasa, seeking nullification of the elections and the Registrar of Trade Unions' registration of elected officials and of the Union's amended Constitution, a permanent injunction against implementation of the amended Constitution, fresh elections overseen by I.E.B.C and the Registrar, and a caretaker committee. The Petition was transferred from Kericho through Nairobi to Mombasa and, by consent, determined on written submissions with pending applications collapsed into the Petition. The Court framed three issues: authority of the Petitioners, legality of the elections, and the appropriate remedies. On authority, it found no Petitioner was authorized to institute or prosecute the Petition, noting the 5th Petitioner's e-mail disowning it and contradictory notices regarding representation. On the elections, the Court held secrecy of the ballot does not depend on voting booths, the Delegates' List was consensual, incumbent participation was constitutionally permissible, excess trustee votes were explained by three ballots per delegate, and the constitutional version issue was resolved by consent order. Applying the principle that elections should not be invalidated for minor breaches not affecting results, the Court found no substantive violation. It also declined to order I.E.B.C or the Registrar to oversee fresh elections, holding trade unions are private organizations that self-regulate, and suggested future use of independent Scrutineers. The Petition was declined with costs to the Respondents, payable by the 1st and 3rd Petitioners only.

Key legal issues

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01

Authority of the 1st Petitioner to institute and prosecute the Petition

Holding

No authorization was established; the Petition suffered significant procedural lapses.

Reasoning

The Petition and supporting affidavits never stated the 1st Petitioner had co-Petitioners' authority. The 5th Petitioner disowned the Petition by e-mail, unchallenged. The 'Authority to Appear, Plead and Act' was unsigned by Lesuper and inconsistent with the 3rd Petitioner acting in person, and a Notice to Act in Person conflicted with continued representation by counsel.

p. 8
02

Whether the elections complied with the law, including the secret ballot and Delegates' List

Holding

Elections were conducted in accordance with the registered Union Constitution; complaints were minor or unproven.

Reasoning

Secrecy was not shown to be violated by absence of booths; the Delegates' List was consensual and the 1st Petitioner chaired the meeting adopting it; excess trustee votes were explained by three ballots per delegate; incumbent participation and Mworia's substitution were constitutionally permissible; the constitutional version issue was resolved by consent order.

p. 7
03

Remedies, including nullification, fresh elections and the role of I.E.B.C and the Registrar

Holding

All substantive remedies refused; I.E.B.C and the Registrar cannot oversee trade union elections.

Reasoning

I.E.B.C's constitutional mandate covers elections to elective bodies established by the Constitution, not private organizations; the Registrar's role under Section 34 is registration and directions only. The Court suggested the Union consider independent Scrutineers in future.

p. 8

Legal principles established

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  • The outcome of an election ought not to be invalidated for minor breaches which do not affect the results.
  • Secrecy of the ballot is achieved where a voter's choice is anonymous, not necessarily where the choice is made in a booth.
  • I.E.B.C's mandate does not extend to trade union elections, which are private organizations' elections.
  • Trade unions retain the right to self-regulate; the Registrar of Trade Unions does not conduct union elections.

Court orders

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  1. 1.The Petition is declined.
  2. 2.Costs to the Respondents, to be paid by the 1st and 3rd Petitioners, Noah Rotich and Jane Mbugua.

Authorities

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Legislation

  • Labour Relations ActSection 34
  • Labour Relations ActSection 35[6]
  • Labour Relations ActSection 35
  • Constitution of KenyaArticle 88[4]
  • Constitution of KenyaArticle 249
  • Employment and Labour Relations Court [Procedure] Rules 2016Rule 17[4]
  • Union Constitution of the Union of Kenya Civil ServantsArticles 14, 15, 30

Cases cited (4)

  • Zakayo Chepkonga & 8 others v. Tom Odege & Another
    Industrial Court of Kenya at Nairobi, Cause Number 1104 of 2011
  • Aloise A. Otiende v. Boniface M. Munyao & Another
    Cause Number 1650 of 2011
  • Michael Ochieng Magugu v. The Registrar of Trade Unions & 2 Others
    Petition Number 7 of 2016
  • Crispol Ngugi Kimani & 24 Others v. Yako Supermarket Limited & Another
    Cause Number 43 [N] of 2009
Jurisdiction invoked
Article 162(2) Constitution of Kenya (implied); Employment and Labour Relations Court [Procedure] Rules 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Noah Rotich & 6 others v Union of Kenya Civil Servants & another [2018] KEELRC 2333 (KLR)", Case Analysis (2018). Petition Number 12 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2333/eng@2018-02-23

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