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ELRCPartially AllowedPetition as amended, filed 16.08.2018 and amended 03.09.2018 (ELRC, Nairobi)· [2020] KEELRC 1310 (KLR)

Trade Unions Congress of Kenya (TUC- Ke) v Joseph Kinyua, Head of Public Service & another; National Assembly & 2 others (Interested Parties) [2020] KEELRC 1310 (KLR)

Employment and Labour Relations Court
9 April 2020
BOByram Ongaya
7,010 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court ruled that no single trade union federation automatically represents all unions, requiring federations to cooperate when nominating SRC members.

What this practically means

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Executive summary

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The petitioner, Trade Unions Congress of Kenya (formerly PUSETU-K), petitioned for declarations that it was the umbrella body representing trade unions entitled under Article 230(2)(c)(i) of the Constitution and the Salaries and Remuneration Commission Act to nominate a member to the SRC; that the nomination, vetting and appointment of the 3rd interested party, Nelly Peris Ashubwe, by COTU were illegal and void, having been done in breach of an interim conservatory order of 17.08.2018; an order of certiorari quashing the vetting report and appointment; and mandamus directing the Head of Public Service to forward its nominee, Charles Godfrey Mukhwaya. COTU raised a preliminary objection on jurisdiction, ripeness and justiciability; the 3rd interested party and Sossion (petitioner's General Secretary) denied hand-picking and challenged the petitioner's authority to sue; the respondents invoked the presumption of regularity. The Court held the petitioner failed to prove it was the umbrella body contemplated by the Constitution, which focuses on the number of registered unions affiliated rather than union membership, and that where multiple federations exist they should jointly constitute the umbrella body or the one with majority registered-union membership should do so. The Sossion letter of 24.08.2018 satisfied the consultation required by order 2 of the interim order, so the vetting was not in breach of it. The petition was premature: the elaborate procedures of the Public Appointments (Parliamentary Approval) Act provided the proper forum, never invoked. Certiorari and mandamus were declined, as were the Article 27 and 47 claims. The Court declared that the registered federations should enter a memorandum of understanding to constitute the umbrella body for future nominations, or legislative intervention may designate it, and ordered each party to bear own costs.

Key legal issues

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01

Identity of the 'umbrella body representing trade unions' under Article 230(2)(c)(i)

Holding

The petitioner failed to establish by evidence that it is the umbrella body; absent statutory criteria, it is the federation with the majority membership of registered trade unions, or the registered federations acting jointly

Reasoning

The petitioner only proved it represented enumerated public-service unions, not the majority of trade unions generally. The Court held the Constitution speaks of trade unions, not union members, so focus is on the number of registered unions affiliated. Absent statutory criteria, joint arrangements among federations or the federation with majority registered-union membership should constitute the umbrella body, to be confirmed by the Registrar in case of dispute.

p. 4
02

Whether vetting and appointment contravened the interim order of 17.08.2018

Holding

No contravention; the Sossion letter of 24.08.2018 on the petitioner's letterhead satisfied order 2 requiring COTU and TUK to consult towards amicable settlement

Reasoning

The process server's affidavit showed service of the order on 20.08.2018, and vetting proceeded on 23.08.2018. However, the Court found Sossion was at all material times the petitioner's General Secretary (per the Registrar's last extract and section 35 of the Labour Relations Act), and his letter dated 24.08.2018 confirming the nominee was agreeable to TUC-K and COTU constituted sufficient evidence of amicable settlement in terms of order 2 of the interim order. The contempt application had been withdrawn and the vetting record was not exhibited.

p. 6
03

Ripeness, justiciability and exhaustion of alternative statutory forum

Holding

The petition was premature; grievances about nomination, qualifications and transparency were for the National Assembly under the Public Appointments (Parliamentary Approval) Act, which the petitioner never invoked

Reasoning

Following the Court's prior opinions on justiciability, where an alternative and more convenient remedy exists in another forum, the Court may decline to act. Sections 6 and 7 of the Public Appointments (Parliamentary Approval) Act provide an elaborate procedure, including memoranda contesting a candidate's suitability, which the petitioner failed to utilise. The Court therefore held it was outside its jurisdiction to delve into the procedure and merits of the nomination, vetting and appointment.

p. 6
04

Alleged violations of Articles 27 and 47

Holding

Not established; the discrimination and fair administrative action claims collapsed with the failure to prove the petitioner was the entitled umbrella body

Reasoning

The petitioner neither demanded reasons from the 1st respondent for the non-transmission of its nominee nor established its entitlement to make the nomination. Having moved the Court prematurely and without exhausting the National Assembly forum, the alleged violations of Articles 27 and 47 and the Fair Administrative Action Act were not made out, and the judicial review orders of certiorari and mandamus could not issue.

p. 7

Legal principles established

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  • Where more than one federation of trade unions exists, the umbrella body for Article 230(2)(c)(i) purposes is the federation enjoying the majority membership of registered trade unions, or the federations jointly by amicable arrangement
  • In determining the umbrella body representing trade unions, focus is on the number of registered unions affiliated, not the membership of individual trade unions
  • Where the law provides a constitutional or statutory forum for deciding a matter, that forum must be exhausted before invoking the Court's jurisdiction
  • Mandamus will not issue unless the duty bearer is shown to have refused, declined, neglected or been indifferent to a demand to perform the duty

Court orders

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  1. 1.Declaration that the petitioner and COTU plus such other federation of trade unions as may exist as duly registered by the Registrar of Trade Unions should enter a memorandum of understanding towards constituting the umbrella body representing trade unions for future nomination of a member of SRC under Article 230(2)(c)(i) as read with sections 4, 5, 6 and 7 of the Salaries and Remuneration Commission Act, or in the alternative, legislative intervention may be invoked towards designating the umbrella body
  2. 2.Each party to bear own costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 258, 27, 47, 230(2)(c)(i), 250
  • Salaries and Remuneration Commission Act, No. 10 of 2011Sections 4, 5, 6, 6(1), 7, 7(9)
  • Labour Relations Act, 2007Section 2, 35, 35(5)
  • Public Appointments (Parliamentary Approval) Act, No. 33 of 2011Sections 3, 5, 6, 6(1)-(10), 7, 8, 9, 10, 11, 12 and Schedule
  • Fair Administrative Action ActNot specified
  • Civil Procedure RulesOrder 53

Cases cited (8)

  • Republic – Versus – Registrar of Trade Unions and Others, Ex-parte William Ochieng Ogolla and Others
    HC Judicial Review Application No. 204 of 2011 at Nairobi
  • Anarita Karimi Njeru –versus- Republic
    (1976-80) 1KLR 1283
  • Justus Kariuki Mate & Another –versus- Martin Nyaga Wambora & Another
    [2017]eKLR
  • Republic –Versus- Attorney General & 2 Others Ex-parte APM Terminals B.V
    [2015]eKLR
  • Judicial Service Commission –Versus- Speaker of the National Assembly & another
    Petition 518 of 2013
  • Lucy Njoki Waithaka v Tribunal appointed to investigate the conduct of Lucy Njoki Waithaka & another; Kenya Magistrates and Judges Association (Interested Party)
    [2019] eKLR
  • Secretary, County Public Service Board & Another –Versus- Hulbhai Gedi Abdille
    [2017]eKLR
  • Geoffrey Mworia-Versus- Water Resources Management Authority and 2 others
    [2015]eKLR
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights and the Constitution)

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, "Trade Unions Congress of Kenya (TUC- Ke) v Joseph Kinyua, Head of Public Service & another; National Assembly & 2 others (Interested Parties) [2020] KEELRC 1310 (KLR)", Case Analysis (2020). Petition as amended, filed 16.08.2018 and amended 03.09.2018 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1310/eng@2020-04-09

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