Jerry Ole Kina v Tom Mboya Odege & another [2021] KEELRC 1522 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the National Executive Board had authority to suspend the Petitioner
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
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.
Whether valid grounds existed for the suspension
Yes - insubordination, misuse of union assets and related allegations are valid grounds under Article 12(1)
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.
Whether the notice and hearing met the requirements of Article 12(3)
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
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.
Whether the Petitioner proved violation of constitutional rights
No - the Petitioner did not refer to or prove the specific constitutional Articles he cited
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.
Legal principles established
#- 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
#- 1.Petition dismissed
- 2.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.