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ELRCPartially AllowedPetition No. E114 of 2021 (consolidated with Petition No. E100 of 2021; Petition No. E098 of 2021; Cause No. E441 of 2021; Nakuru ELRC Petition No. E019 of 2021; Nakuru ELRC Cause No. E44 of 2021)· [2021] KEELRC 1053 (KLR)

Union of Kenya Civil Servants & 7 others v Ruth Baraza & 8 others; Registrar of Trade Unions (Interested Party) [2021] KEELRC 1053 (KLR)

Employment and Labour Relations Court
31 August 2021
7,668 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered the Union of Kenya Civil Servants to hold elections by 30 September 2021, barred two retired candidates from contesting, and stopped union organs without quorum from meeting.

What this practically means

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Executive summary

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Six suits concerning the elections of national officials of the Union of Kenya Civil Servants were consolidated and heard together before Onyango J of the Employment and Labour Relations Court, Nairobi. The disputes raised the validity of the election notice issued by the Secretary General, Tom Odege; the eligibility of Justus Mugo and Jerry Ole Kina to contest the position of Secretary General; the correct delegates' list; the quorum of the National Executive Board and National Administrative Council; the date and venue of the quinquennial elections; and the eligibility of Sofi Kachwai and Charles John Atieli as Trans-Nzoia delegates. The court held that the notice of the National Quinquennial Delegates Conference was validly issued by the Secretary General under Article 15 of the Union's constitution, and that the shift of venue to Tom Mboya Labour College was justified by the unavailability of Kasarani and Bandari College. It declared that Mugo and Ole Kina, being retired and no longer eligible for membership, could not rely on Section 31(4)(a) of the Labour Relations Act to re-enter the Union, and had also not complied with Section 31(5) or the 2018 ADC resolution requiring payment of Kshs.3,000,000 and proof of no criminal conviction. The delegates' list adopted in the consent of 9th June 2021 was upheld as conforming to Article 15.1.1(2), IPPD being relevant only to confirm paid-up voting status. The court declared NEB and NAC lacked quorum, found Kachwai and Atieli had not proved registration as branch officials, ordered the elections to be held on or before 30th September 2021 at Tom Mboya Labour College, dismissed the application of 20th June 2021, and directed each party to bear its own costs.

Key legal issues

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01

Validity of the notice of elections issued by the Secretary General

Holding

The notice was valid; it complied with Article 15.1.1(c) and the NEB resolutions of 11th May 2021, and the change of venue to Tom Mboya Labour College was justified by the unavailability of Kasarani and Bandari College.

Reasoning

Article 15 of the Union's constitution vests issuance of the NQDC notice in the Secretary General; only the Annual and Special Delegates Conferences are convened by the NEB. The NEB had recommended Kasarani, but Sports Kenya confirmed non-availability due to the World Under 20 Championship and Bandari College lacked capacity, so the venue shift was legitimate and the notice stood.

p. 7
02

Eligibility of Justus Mugo and Jerry Ole Kina to vie for Secretary General

Holding

They are not eligible; as retired persons they no longer qualify for membership, and Section 31(4)(a) of the Labour Relations Act is not a route for former officials to re-enter the Union, nor did they comply with Section 31(5) or the 2018 ADC resolution requirements.

Reasoning

Section 31(4)(a) targets outsiders otherwise qualified for membership who are merely outside the sector, not lapsed members. The ADC resolution of 2018 (which Ole Kina himself moved) imposed requirements including payment of Kshs.3,000,000 and proof of no criminal conviction; no application to set aside that resolution was filed, and it was binding on the two.

p. 11
03

Correct list of delegates

Holding

The delegates' list adopted in the consent dated 9th June 2021 conforms with Article 15.1.1(2); the IPPD list is not a basis for deriving delegates, being relevant only to confirm paid-up status at voting.

Reasoning

The constitution bases branch delegations on number of members in the Roll of Members. The list relied on by Mr. Kirwa lacked a breakdown of members per branch and total registered membership, so it understated delegates. Section 33 determines who may vote, not how delegates are apportioned.

p. 12
04

Quorum of NEB and NAC

Holding

NEB and NAC lack quorum and cannot transact business until after elections, since 7 officials retired and 5 were elected branch officials.

Reasoning

Article 20 requires a quorum of two-thirds of members entitled to attend and vote. Retired officials cannot vote under Section 33(a) and (c) of the Act, and branch officials cannot hold national office under Article 7(II). With NEB membership of 33 requiring 22 members and NAC requiring 10, the organs cannot validly meet.

p. 12
05

Eligibility of Sofi Kachwai and Charles John Atieli as Trans-Nzoia delegates

Holding

Not established; they produced no extract from the Registrar showing registration as branch officials.

Reasoning

Registration as officials of the branch by the Registrar of Trade Unions is a precondition to qualifying as delegates; no such extract was produced before the Court.

p. 13

Legal principles established

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  • The notice of a National Quinquennial Delegates Conference is issued by the Secretary General under Article 15 of the Union's constitution and does not require NEB sanction
  • Section 31(4)(a) of the Labour Relations Act is meant to inject outside expertise, not to recycle former officials who have ceased to be eligible for membership
  • Delegates' representation is based on the number of members in the Roll of Members, while only the delegate must be a paid-up voting member under Section 33
  • The Annual Delegates Conference is the supreme organ of the Union and its resolutions bind members unless set aside

Court orders

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  1. 1.Declaration that the NEB and NAC have no quorum and cannot hold any meetings until after elections are held
  2. 2.Declaration that Mr. Jerry Ole Kina and Justus Mugo are not eligible to vie for the post of Secretary General of the Union of Kenya Civil Servants
  3. 3.Declaration that the NEB meeting and NAC meeting held on 13th July 2021 had no quorum
  4. 4.Declaration that the Delegates' List adopted by the Court pursuant to the consent dated 9th June 2021 conforms with Article 15.1.1(2) of the Union's constitution
  5. 5.Order that Sofi Kachwai and Charles John Atieli have not proved registration as officials of Trans Nzoia Branch and are not eligible to be delegates at the Quinquennial Delegates Conference
  6. 6.Order that the quinquennial elections be held on or before 30th September 2021 at Tom Mboya Labour College
  7. 7.Order that the Secretary General ensures only delegates are allowed into the venue and that adequate security is mounted for peaceful and credible elections
  8. 8.Dismissal of the application dated 20th June 2021 by Justus Kinyua Mugo, Jerry Ole Kina and Harrison O. Kokebe
  9. 9.Any other prayers not granted deemed dismissed
  10. 10.Nakuru Cause No. E44 of 2021 resolved by this judgment

Authorities

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Legislation

  • Labour Relations ActSections 31(1), 31(4), 31(5), 33, 34
  • Constitution of KenyaArticle 48; Article 159(2)(d); Chapter 6
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Justus Kinyua Mugo v Union of Kenya Civil Servants & Another
    Nairobi Petition No. 121 of 2018 consolidated with Nakuru Petition No. 15 of 2018
  • Zachary Binyanya & 3 Others v Union of Kenya Civil Servants & 2 Others
    Petition No. 178 of 2019
  • Sofi Kachwai & Another v Tom Odege & Union of Kenya Civil Servants
    Nakuru ELRC Petition No. E016 of 2021
Jurisdiction invoked
Articles 162(2), 165(2) and 50(1) of the Constitution (ELRC jurisdiction over trade union disputes); Labour Relations Act disputes referred to the Industrial Court under Section 34(4)

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, "Union of Kenya Civil Servants & 7 others v Ruth Baraza & 8 others; Registrar of Trade Unions (Interested Party) [2021] KEELRC 1053 (KLR)", Case Analysis (2021). Petition No. E114 of 2021 (consolidated with Petition No. E100 of 2021; Petition No. E098 of 2021; Cause No. E441 of 2021; Nakuru ELRC Petition No. E019 of 2021; Nakuru ELRC Cause No. E44 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1053/eng@2021-08-31

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