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ELRCDismissedPetition and application dated 6th May 2021 (amended 17th May 2021, consolidated 27th May 2021)· [2021] KEELRC 1522 (KLR)

Jerry Ole Kina v Tom Mboya Odege & another [2021] KEELRC 1522 (KLR)

Employment and Labour Relations Court
17 June 2021
5,463 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a union official's suspension, ruling that unions can discipline leaders according to their own constitutions and that members must actively defend themselves.

What this practically means

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Executive summary

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The Petitioner, the elected 1st Deputy Secretary General of the Union of Kenya Civil Servants, petitioned the court seeking declarations that his suspension by the National Executive Board (NEB) on 11th May 2021 was ultra vires the union constitution, the Labour Relations Act and Article 41 of the Constitution, an injunction restraining the respondents and barring him from the 22nd June 2021 elections, an order compelling acceptance of his notification to vie for Secretary General, general damages and costs. He alleged the disciplinary process was instigated by the incumbent Secretary General to block his candidature, that the wrong organ initiated discipline, that notice was under 14 days, and that the process was a nullity. The Respondents countered that the NEB duly issued a show cause notice, that the Petitioner failed to appear or defend himself, and that internal union remedies of appeal to the Advisory Council remained unexhausted. The court framed three issues: whether the disciplinary process violated the union constitution, the Labour Relations Act and the Constitution; whether the remedies were available; and costs. It held that Article 12 of the union constitution vests disciplinary authority over National Officials in the NEB; that the grounds advanced were valid under Article 12(1); that the constitution is silent on the reckoning of the 14-day notice and the Petitioner did not discharge his burden of proof; that he acknowledged the meeting and chose not to defend himself; and that his late letter to the Registrar of Trade Unions, obtained while the suit was pending, had no probative value. No violation of constitutional rights was proved. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the National Executive Board had authority to suspend the Petitioner

Holding

Yes - Article 12 of the union constitution vests disciplinary power over National Officials in the National Executive Board, and the Board acted within its powers

Reasoning

The court examined Articles 12 and 15 of the union constitution and held that the National Executive Board is the organ charged with discipline of National Officials, with the Advisory Council to deliberate on its decision. The Petitioner's contention that the National Administrative Council was the proper forum did not displace the clear text of Article 12, under which the Board suspended him and communicated the decision with advice on appeal to the Advisory Council.

p. 7
02

Whether valid grounds existed for the suspension

Holding

Yes - insubordination, misuse of union assets and related allegations are valid grounds under Article 12(1)

Reasoning

The show cause letter dated 26th/28th April 2021 accused the Petitioner of insubordination, misuse of union assets, contemptuous display of scorn and disdain to elected officials, and disobedience of union procedures. The court found these constitute valid grounds under Article 12(1) of the union constitution, and the Petitioner did not deny the specific allegations.

p. 7
03

Whether the notice and hearing met the requirements of Article 12(3)

Holding

Yes - the constitution is silent on reckoning of the 14-day notice; the Petitioner did not discharge his burden and acknowledged the meeting, choosing not to defend himself

Reasoning

The Petitioner claimed less than 14 days' notice, but the constitution does not state how the 14 days should be reckoned, so neither interpretation could be faulted and the Petitioner bore the onus. He acknowledged receipt of the notice, confirmed he would attend late, and did not state that deliberations occurred in his absence or what he did to defend himself after joining the meeting. His failure to defend himself was a choice, not a denial of opportunity.

p. 7
04

Whether the Petitioner proved violation of constitutional rights

Holding

No - the Petitioner did not refer to or prove the specific constitutional Articles he cited

Reasoning

Although the Petitioner cited several Articles of the Constitution and the Labour Relations Act in the petition, his submissions only casually mentioned Articles 41(2)(c) and 47. Without submissions and proof on the specific Articles, no violation of constitutional rights or fundamental freedoms, or of the Labour Relations Act, was established.

p. 8

Legal principles established

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  • The organ charged with discipline of National Officials of the Union of Kenya Civil Servants is the National Executive Board under Article 12 of the union constitution, whose decision is deliberated upon by the Advisory Council
  • Where a constitution is silent on how a period of notice should be reckoned, the party asserting its preferred interpretation bears the onus of proving it is the correct one
  • A party cannot pursue relief in two different forums simultaneously; a letter procured while a suit is pending has no probative value
  • A party alleging violation of specific constitutional Articles must refer to and prove those violations in submissions

Court orders

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  1. 1.Petition dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Labour Relations ActSection 34(1)
  • Labour Relations ActSection 34
  • Labour Relations ActSection 4(2)(a)
  • Labour Relations ActSection 27
  • Labour Relations ActSection 31
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 41(2)(c)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University
    (2018) eKLR
  • Prasad v Minister for Immigration
  • Suleiman Said Shabbal v Independent Electoral & Boundaries Commission & 5 Others
    (2014) eKLR
  • Macfoy v United Africa CO. LTD
  • Judicial Service Commission and Another v Lucy Muthoni Njora
    (2021) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over disputes relating to trade unions and employment (Labour Relations Act); constitutional petition under Article 41 and 47 of the Constitution invoked by the Petitioner

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, "Jerry Ole Kina v Tom Mboya Odege & another [2021] KEELRC 1522 (KLR)", Case Analysis (2021). Petition and application dated 6th May 2021 (amended 17th May 2021, consolidated 27th May 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1522/eng@2021-06-17

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