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ELRCDismissedPetition No. 83 of 2017 (consolidated with Petition No. 26 of 2018)· [2019] KEELRC 727 (KLR)

Partick Njuguna & 7 others v Wilson Sossion & 3 others [2019] KEELRC 727 (KLR)

Employment and Labour Relations Court
27 September 2019
10,220 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court ruled that an MP can lawfully serve as a trade union secretary general unless someone proves a real conflict of interest.

What this practically means

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Executive summary

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Two consolidated constitutional petitions challenged Hon. Wilson Sossion's continued tenure as Secretary General/CEO of the Kenya National Union of Teachers (KNUT) after his nomination in August 2017 as a Member of Parliament representing workers' special interests. The petitioners in Petition No. 26 of 2018, KNUT members, argued the dual positions contravened Articles 77(1) and 260 of the Constitution and section 26(1) of the Leadership and Integrity Act, seeking declarations that he vacate office, restraint orders and an account/surcharge. Petition No. 83 of 2017 was brought by the Trusted Society of Human Rights Alliance. The respondents maintained that an MP is not a full-time state officer, that section 26 requires proof of inherent incompatibility, impairment of judgment or conflict of interest, that the ADC of KNUT had unanimously ratified the nomination, and that the court lacked jurisdiction under the exhaustion doctrine. The court framed four issues. It held that Articles 75, 77 and 260 read with section 26 do not bar an MP from holding union office unless a conflict is proved; distinguished Robert Nyabuto Nyabwocha because that case concerned a full-time Treasurer vying for an elective seat, whereas Sossion was a nominated MP for workers' interests whose nomination KNUT's ADC had ratified; dismissed the exhaustion objection for procedural and substantive reasons; and found the petitioners' prejudice case rested on newspaper articles of little probative value. Petition No. 83 of 2017 was dismissed for want of prosecution and Petition No. 26 of 2018 dismissed on the merits, with each party bearing its own costs. Judgment delivered at Nairobi on 27 September 2019 by Maureen Onyango J.

Key legal issues

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01

Whether the Constitution bars a nominated MP from simultaneously holding the office of Secretary General of a trade union

Holding

No. Articles 75, 77 and 260 and section 26 of the Leadership and Integrity Act do not bar an MP from holding union office; petitioners failed to prove incompatibility, impairment of judgment or conflict of interest.

Reasoning

The court read Articles 75 and 77 together with section 26 of the Leadership and Integrity Act and held the provisions make two separate propositions: avoidance of conflict, and prohibition of other gainful employment for full-time state officers. The petitioners bore the burden of proving the 1st respondent was a full-time state officer barred from other employment or that the dual roles created a statutory conflict. Adopting prior authorities, the court found MPs are not necessarily full-time state officers and that the exceptions were not proved.

p. 13
02

Whether Robert Nyabuto Nyabwocha applies

Holding

Distinguished. That case concerned a full-time Assistant National Treasurer who was contesting an elective parliamentary seat; the circumstances here differ.

Reasoning

The court noted that in Nyabwocha the union position in question was Assistant National Treasurer, which the judge there found to be a full-time job and custodian of union funds, and the individual was vying for an elective seat requiring campaigning and constituency duties. Here the 1st respondent was a nominated MP representing special interests of workers, did not campaign or hold a constituency, and KNUT's ADC had ratified his nomination. The Labour Relations Act also treats the Secretary General's office differently from that of a Treasurer.

p. 14
03

Whether the court lacked jurisdiction under the doctrine of exhaustion of remedies

Holding

The objection was dismissed; the argument, even if raised properly, would not have succeeded as one petition was the more efficient forum.

Reasoning

The 4th respondent argued the petitioners should have first gone to the IEBC, the Committee of Powers and Privileges, or lodged complaints under sections 42 and 43 of the Leadership and Integrity Act and section 62 of the Labour Relations Act. The court held the jurisdictional issue should have been raised as a preliminary point at the outset, and that even then it would have failed because requiring multiple complaints in different fora would be less efficient than a single petition where all issues are addressed together.

p. 15
04

Whether the petitioners proved prejudice

Holding

No. The evidence was largely newspaper articles of little probative value and no prejudice was demonstrated.

Reasoning

The petitioners' supplementary affidavit relied mainly on newspaper articles which the 1st respondent contended were opinions of journalists with little or no probative value. The petitioners also did not explain why they did not appeal against the ADC decision ratifying the nomination. The court found the matters deponed to did not disclose any prejudice suffered by the petitioners from the 1st respondent holding both positions.

p. 15

Legal principles established

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  • A Member of Parliament is not barred from holding the office of secretary general of a trade union merely by virtue of being a state officer; the bar in Article 77(1) and section 26 of the Leadership and Integrity Act applies only to full-time state officers engaged in gainful employment that is inherently incompatible, impairs judgment or creates a conflict of interest
  • The burden lies on the petitioner to prove incompatibility, impairment of judgment or conflict of interest where an MP holds another position
  • Section 31(4)(a) of the Labour Relations Act permits a general secretary of a trade union to be a person not engaged or employed in the sector concerned, distinguishing the office from that of a treasurer

Court orders

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  1. 1.Petition No. 83 of 2017 dismissed for want of prosecution
  2. 2.Petition No. 26 of 2018 dismissed
  3. 3.Each party shall bear their own costs
Jurisdiction invoked
Articles 22, 23, 165 and 260 of the Constitution of Kenya, 2010 (constitutional petition for enforcement/interpretation)

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, "Partick Njuguna & 7 others v Wilson Sossion & 3 others [2019] KEELRC 727 (KLR)", Case Analysis (2019). Petition No. 83 of 2017 (consolidated with Petition No. 26 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/727/eng@2019-09-27

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