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ELRCDismissedNot stated in the extract· [2021] KEELRC 1675 (KLR)

Edna Kalunde Mutinda v Francis Kalila Mwinzi & 2 others [2021] KEELRC 1675 (KLR)

Employment and Labour Relations Court
27 May 2021
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan union official's suspension stood because her own branch committee had validly suspended her for alleged fraud, despite procedural flaws by the national office.

What this practically means

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Executive summary

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The Claimant, the elected Mbooni Branch Executive Secretary of the 3rd Respondent union, filed an application dated 21st August 2020 seeking to restrain the Registrar of Trade Unions from registering changes made by the union's Secretary General, Wilson Sossion, suspending her and replacing her with Francis Kalila Mwinzi; she also sought reversion of branch officials and bank signatories and a declaration that her removal was unlawful. She argued that under the union's constitution only the Branch Executive Committee could suspend a branch officer, that she was never charged or heard, and that the Secretary General and NEC lacked capacity to suspend her directly. The Respondents justified the action on a 13th July 2020 NEC resolution following a critical memorandum the Claimant and other branch officials sent directly to the TSC CEO, and pointed to separate branch-level proceedings over alleged fraud and embezzlement of branch funds, with the BEC resolving on 28th July 2020 to suspend her. The court agreed that a branch official's suspension should originate from the BEC, following Bonuves Kemei Tenai, but held that since the BEC had itself regularly resolved to suspend the Claimant over the embezzlement allegations, the NEC's procedural irregularity was immaterial; staying the NEC decision would serve no purpose. The court also held that branch officials may not bypass national union structures to engage the employer, and that no restraining order could issue against the Registrar, a non-party who had not been heard. The application was declined with no order on costs.

Key legal issues

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01

Whether the NEC could directly suspend a branch official

Holding

The suspension ought to have originated from the BEC per Bonuves Kemei Tenai, but since the BEC itself had met and resolved to suspend the Claimant over fraud and embezzlement allegations, the suspension stands.

Reasoning

The court agreed with the claimant's authority that branch officials' discipline should originate from the BEC. However, independent of the NEC's irregular action, the BEC met on 28th July 2020 and suspended the Claimant over alleged embezzlement of branch funds. The same substantive outcome was thus achieved regularly at branch level, so the court would not lift the suspension. The NEC was left free to correct its error and channel both accusations through the proper constitutional process.

p. 3
02

Whether branch officials may engage the employer directly on national issues

Holding

Branches cannot bypass national union leadership to engage the employer; the Claimant and colleagues acted outside the union constitution, the Industrial Relations Charter and the Labour Relations Act.

Reasoning

The memorandum to the TSC CEO raised national issues within the jurisdiction of the National Office. The Recognition Agreement between the union and the employer does not contemplate branch functionaries engaging the employer directly. Established channels of communication and industrial relations machinery existed for such grievances, and by congregating at Nyeri to criticise the union and its leaders, the branch officials departed from those accepted mechanisms, even if their underlying grievances were weighty.

p. 2
03

Whether an order could issue against the Registrar of Trade Unions

Holding

No, as the Registrar is not a party to the claim and must be heard before any order is made against her.

Reasoning

The court noted the Registrar of Trade Unions was not joined as a party, yet the claimant sought to restrain her from registering changes to branch officials. The court held that the law requires a person to be heard before an order is made against them, so such a restraining order could not issue against a non-party.

p. 3

Legal principles established

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  • An order cannot issue against a person who is not a party to the proceedings, as every person against whom an order is sought must be heard.
  • Where a regular decision at branch level achieves the same result as an irregular decision of the national office, the court will not stay the irregular decision.

Court orders

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  1. 1.The Application filed by the Claimant, dated 21st August 2020 is declined.
  2. 2.No order on the costs.

Authorities

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Legislation

  • Employment ActNot specified
  • Labour Relations ActNot specified
  • Industrial Relations CharterNot specified

Cases cited (2)

  • Bonuves Kemei Tenai v. Wilson K. Kemboi & 3 Others
    Eldoret E&LRC Cause No. 31 of 2020
  • Giella v. Cassman Brown and Co Ltd
    1973 (full citation not provided in the judgment)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and trade union disputes (Labour Relations Act and the Union's constitution invoked; no specific constitutional provision stated)

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, "Edna Kalunde Mutinda v Francis Kalila Mwinzi & 2 others [2021] KEELRC 1675 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1675/eng@2021-05-27

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