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ELRCDismissedPetition No. 4 of 2019

Gwiyo Kwaraa Damon & 4 others v Kenya National Union of Nurses & 3 others; Registrar of Trade Unions (Interested Party) [2020] KEELRC 989 (KLR)

Employment and Labour Relations Court of Kenya
2 June 2020
MMM. Mbaru
9,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed nurses' claims against union leaders over finances, ruling that disputes over union accounts must first go to the Registrar of Trade Unions.

What this practically means

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Executive summary

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Five members of the Kenya National Union of Nurses petitioned the ELRC at Kericho seeking declarations that the secretary general, national treasurer and a trustee violated the union constitution, the Labour Relations Act and the Constitution; injunctions over the union's bank accounts; audited accounts; suspension and surcharging of the officials; a forensic audit of union finances for 2013-2019; preservation of union assets; and appointment of a caretaker committee by the Registrar of Trade Unions. The respondents raised preliminary objections on res judicata, sub judice, lack of authority and locus standi, conflict of interest by petitioners' counsel, and abuse of process, and denied any misuse of funds, relying on trustees' affidavits. The court framed eight issues. It held the petition was not res judicata or sub judice since the petitioners had not litigated these claims against these respondents before, and trade union officials change periodically producing distinct suits. No conflict of interest was established, the petition having been filed by a different firm and no instruction of counsel by the respondents proved. Applying Anarita Karimi Njeru, no constitutional violation was pleaded with precision. On the substance, the court held that the union constitution and sections 41-47 of the Labour Relations Act vest the primary mandate to inspect books, require accounts and sanction obstruction in the Registrar of Trade Unions, whom the petitioners had joined only as an interested party and who did not participate. Without any application to inspect the books or documentary evidence linking the respondents to misappropriated funds or vehicles, no violation was proved. The petition was dismissed with each party bearing its own costs, with the court cautioning litigants to come with clean hands and noting the intemperate correspondence by the 2nd respondent to the Registrar.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit is res judicata
  2. 2.Whether the suit is sub judice
  3. 3.Whether there is conflict of interest with regard to the counsel for the petitioners and the 1st and 2nd respondents
  4. 4.Whether there are constitutional violations
  5. 5.Whether there is violation of the 1st respondent union constitution
  6. 6.Whether there is violation of the provisions of sections 43, 44, 45 and 47 of the Labour Relations Act and by extension Article 41 of the Constitution, 2010
  7. 7.Whether the remedies sought should issue
  8. 8.Who should pay costs

Key legal issues

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01

Res judicata and sub judice

Holding

The doctrine of res judicata and sub judice does not bar the petition; the petitioners and respondents had not litigated these issues between themselves in the prior or pending suits cited

Reasoning

The court reviewed prior suits (Nairobi ELRC No. 1447 of 2014 consolidated suits, No. 12 of 2017, No. 747 of 2018 and No. 1592 of 2018) and found the petitioners had not been parties litigating these claims as claimants against these respondents. Trade unions periodically change officials, generating distinct suits. The pending suits were different and separate.

p. 7
02

Conflict of interest by petitioners' counsel

Holding

No conflict of interest established; the petition was filed by a different law firm and no instruction of the firms by the respondents was proved

Reasoning

The petition was filed by Maritim & Company Advocates while Eldoret ELRC No. 233 of 2018 was filed by Mwakio, Kirwa & Company Advocates. Even if Mr Kirwa appeared in both, acting against the union in both suits is not a conflict. No evidence showed the respondents instructed those firms.

p. 8
03

Alleged constitutional violations

Holding

No constitutional violation established; the petition did not plead violations with the precision required by Anarita Karimi Njeru

Reasoning

Following Anarita Karimi Njeru and Mumo Matemo, the court held that merely citing constitutional articles is insufficient. The petitioners failed to articulate with reasonable precision any infringed provision or the manner of infringement, so no constitutional violation was discerned.

p. 8
04

Violation of the union constitution and the Labour Relations Act

Holding

No violation proved; the statutory machinery for inspection of accounts and sanctioning obstruction lies primarily with the Registrar of Trade Unions, which the petitioners bypassed by joining it merely as an interested party

Reasoning

Sections 41-47 of the Act and chapters XI and XV of the union constitution provide a regime for inspection of books, rendering of accounts and sanctioning of obstruction. The petitioners made no application to inspect the books as required, and the Registrar of Trade Unions, which holds the primary mandate, did not participate. Without an audit or paper trail, allegations of misappropriation of funds and vehicles were unsupported.

p. 11

Legal principles established

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  • A constitutional petition must set out with precision the provisions said to be infringed and the manner of infringement
  • Where a trade union official obstructs inspection of accounts, the Registrar of Trade Unions holds the primary statutory mandate to inspect, require accounts, and move the court under sections 41, 45 and 47 of the Labour Relations Act
  • A trade union member's access to books of accounts is governed by the union constitution, requiring written notice of at least seventy two hours to the secretary general
  • A litigant must come to court with clean hands, an imperative requirement under section 3 of the Employment and Labour Relations Court Act, 2011

Court orders

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

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MM
majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, 2010 Article 41 read with the Labour Relations Act, 2007 and the Employment and Labour Relations Court Act, 2011

Relief refused

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Declaration that the 2nd, 3rd and 4th respondents violated the union constitution, the Labour Relations Act and the Constitution of Kenya

No violation proved; complaints not pleaded with precision and no conclusive materials of breach

p. 11

Injunction restraining union officials from dealing with union bank accounts

No evidence of unlawfully expended or withheld funds established; statutory route lies with Registrar of Trade Unions

p. 10

Orders for audited accounts, forensic audit, surcharging, suspension of officials and appointment of a caretaker committee

Petition dismissed as a whole; the mandate to inspect accounts and enforce compliance rests with the Registrar of Trade Unions under sections 41-47 of the Labour Relations Act

p. 11

Costs

Each party shall bear own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, as set out above, the court finds no violations of the union constitution or the law and the substance of the petition is lost. The petition is hereby dismissed. Each party shall bear own costs.
p. 11Disposition - dismissal and costs
he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
p. 8Pleading constitutional violations with precision
Where such office is obstructed by any officer/officers of the 1st respondent in undertaking its legal mandate, then the Registrar of Trade Unions must move the court as of necessity and redress to stop and or avert wastage of a trade union funds and properties.
p. 10Primary statutory mandate of the Registrar of Trade Unions
any such member shall have given at least seventy two hours written notice to the secretary general.
p. 8Member's access to union books of account
It behoves upon every litigant approaching this court to come with clean hands. It is an imperative requirement under section 3 of the Employment and Labour Relations Court Act, 2011.
p. 11Clean hands doctrine
The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded.
p. 6Res judicata as public policy

Issues in the judgment

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minor

Coram/panel is not stated in a structured bench listing; the judge is identified only by signature 'M. MBARU JUDGE' at the end

minor

The passage on res judicata contains garbled sentences apparently due to text-corruption in the original

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (24)

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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, "Gwiyo Kwaraa Damon & 4 others v Kenya National Union of Nurses & 3 others; Registrar of Trade Unions (Interested Party) [2020] KEELRC 989 (KLR)", Case Analysis (2020). Petition No. 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/989/eng@2020-06-02

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