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ELRCDismissedNotice of motion dated 21st August 2020 (in the claim at the Employment and Labour Relations Court)· [2021] KEELRC 2079 (KLR)

Michael Ndungu Mutua Muna v Kenya National Union of Teachers [2021] KEELRC 2079 (KLR)

Employment and Labour Relations Court
19 February 2021
5,773 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to block KNUT's suspension of an official, ruling he must first complete the union's internal disciplinary process before turning to court.

What this practically means

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Executive summary

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The applicant, Michael Ndungu Mutua Muna, the elected Branch Executive Secretary of KNUT Kiambu West Branch and a member of the National Executive Council, was suspended by the KNUT Secretary General, Hon. Wilson Sossion, by letter dated 21st July 2020 for writing a memorandum to the Teachers Service Commission following an unauthorised meeting in Nyeri, allegedly violating Articles 14(5) and X(A)7 of the union constitution. His branch monthly commission of Kshs.493,489 was also stopped. He filed a notice of motion seeking injunctions restraining the Registrar of Trade Unions from registering the changes of officials, an injunction against the withholding of the branch commission, and declarations nullifying the suspension and the withholding of funds. He argued the suspension violated the union constitution's procedure for suspension, that he was denied a hearing contrary to Articles 47 and 50 of the Constitution, and that no valid organ suspended him. The respondent, through a replying affidavit of the Secretary General, maintained the suspension followed the union constitution, that service was effected by registered post, and that the suit was premature because the internal disciplinary process was ongoing and would culminate before the Annual Delegates Conference. The court, applying Giella v Cassman Brown and Mrao Ltd v First American Bank, held the applicant had not established a prima facie case with probability of success nor the balance of convenience, noting he had not denied the grounds for suspension, that he was suspended by the National Office as an NEC member so the branch articles he invoked did not apply, and that the disciplinary process had commenced but stalled due to pending litigation. Relying on Rose W. Kiragu v Teachers Service Commission, the court declined to interfere with the ongoing internal disciplinary process. The application was dismissed with costs, and the respondent was directed to take steps to have all related cases by suspended Executive Secretaries heard together.

Key legal issues

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01

Whether the applicant established grounds for a temporary injunction under Giella v Cassman Brown

Holding

The applicant failed to establish a prima facie case with probability of success or that the balance of convenience lay in his favour; the application was not merited

Reasoning

The court found that the suspension was effected by the National Office in the applicant's capacity as an NEC member under Articles 14(5) and X(A)7 of the union constitution, not by the branch, so the branch-based constitutional provisions he relied on did not apply. The applicant also did not deny the grounds for suspension, and instead of responding to the suspension letter he whipped up branch support to defy the disciplinary committee. The court held such rebellion cannot be sanctioned by a court whose role is to bring order.

p. 7
02

Whether the suit was premature because the internal disciplinary process had not been exhausted

Holding

The suit was premature; the disciplinary process had commenced but had stalled due to the pendency of the suit and other suits by similarly suspended Executive Secretaries

Reasoning

Minutes of the respondent's Sub-Committee on Discipline held on 25th August 2020 showed the suspension of Executive Secretaries was on the agenda and the claimant's case was noted as pending because he had gone to court. The suspension letter itself indicated the applicant would face the Annual Delegates Conference. Relying on Rose W. Kiragu v Teachers Service Commission and Corporal Thomas Othoo, the court declined to interfere with the ongoing internal disciplinary process mid-course.

p. 9
03

Whether the suspension procedure under the union constitution was violated

Holding

The court found the applicant had not made out a prima facie case of procedural violation, noting the suspension was by the National Office under Articles 14(5) and X(A)7 and that the applicant had not denied the grounds

Reasoning

The applicant argued the 13th July 2020 meeting lacked notice, agenda, quorum, resolution and voting under Articles 5(5), 9(C)7, 18(C) and 18(D). The respondent asserted the suspension followed Article IX(B) and Article IX(C)7 via a virtual steering committee meeting. The court considered that the applicant was suspended as an NEC member, not as a branch officer, rendering the branch suspension articles he invoked inapplicable, and that his grounds for suspension stood undenied.

p. 6

Legal principles established

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  • Courts should not interfere with an employer's or union's right to internally discipline an employee/member unless the process is lawful and outrightly flawed; internal disciplinary mechanisms must be exhausted before resort to the court
  • The principles for grant of an interlocutory injunction are the Giella v Cassman Brown conditions: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience

Court orders

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  1. 1.The application dated 21st August 2020 is dismissed with costs
  2. 2.The respondent is directed to take steps to ensure all cases filed by suspended Executive Secretaries are heard together to avoid different decisions being made by different courts

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47 and Article 50
  • Constitution of Kenya, 2010Article 159(2)(d) and Article 48
  • Labour Relations ActSection 35
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of the Kenya National Union of TeachersArticles 5(5), 9(C)7, IX(B), X, X(A)7, X(C), X(D), XIV(5), XVIII(G)(2), 18(C), 18(D)

Cases cited (10)

  • Kenya National Union of Teachers & Another v Registrar of Trade Unions & 2 Others
  • Viginia Kaluki Kalwe v Christopher Mutinda Mutua & 2 others
    (2018) eKLR
  • Rose W. Kiragu v Teachers Service Commission
    (2016) eKLR
  • Corporal Thomas Othoo v National Police Service Commission & 3 Others
    (2016) eKLR
  • Rajput v Barclay Bank of Kenya Ltd and 3 others
    (2004) eKLR 393
  • Giella v Cassman Brown
    1973 E.A 358
  • Mrao v First American Limited and 2 others
    (2003) KLR
  • Professor Gitile Naituli v University Council Multimedia University College and Another
    Industrial Cause Number 1200 of 2012
  • Alfred Nyungu Kimungui v Bomas of Kenya
    (2013) eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes (trade union membership and disciplinary dispute); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act

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, "Michael Ndungu Mutua Muna v Kenya National Union of Teachers [2021] KEELRC 2079 (KLR)", Case Analysis (2021). Notice of motion dated 21st August 2020 (in the claim at the Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2079/eng@2021-02-19

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