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ELRCDismissedPetition dated 13th January 2021· [2021] KEELRC 2134 (KLR)

Muthama Ngumbi & 2 others v Tailors and Textiles Workers Union & another [2021] KEELRC 2134 (KLR)

Employment and Labour Relations Court
16 February 2021
MOMaureen Onyango
4,630 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court dismissed a challenge to trade union branch elections because the candidates failed to prove they were eligible members.

What this practically means

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Executive summary

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Three petitioners, described as an incumbent branch treasurer and two former branch secretaries of the Tailors and Textiles Workers Union, petitioned against branch elections held on 10th January 2021, seeking certiorari to quash the elections and disqualification letters, prohibition against registration of changes of officials, and mandamus compelling fresh, properly noticed and supervised elections for the Athi-River/Kitengela, Nakuru and Nairobi branches. They complained of lack of the mandatory 14 days' notice, elections held outside the employer's premises contrary to Section 56(1)(d) of the Labour Relations Act, incarceration of the 2nd Petitioner by police, and disqualification of the 3rd Petitioner as a 'busy body'. The 1st Respondent denied the petitioners were members, asserted want of locus standi, and produced notices of election dated 17th December 2020. The 2nd Respondent did not participate. Maureen Onyango J framed three issues: capacity to vie, violation of the Constitution, the Labour Relations Act and the union constitution, and entitlement to relief. She held the 2nd and 3rd Petitioners proved neither membership nor engagement in industries listed under Rule 2(a) of the union constitution - payment of the Kshs.80,000 deposit indicating non-membership - so they could not claim denial of association. The 1st Petitioner was eligible but did not prove he applied to defend his seat. Notices of two weeks were properly issued, Section 56(1)(d) was held inapplicable to branch elections, and no evidence linked the union to the arrests or assault. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Eligibility/capacity of petitioners to vie for union branch elective positions

Holding

The 2nd and 3rd Petitioners did not prove membership or employment in the listed industries; the 1st Petitioner, as incumbent Treasurer, was eligible to vie and vote

Reasoning

Rule 21(d) and (e) of the union constitution and Rule 2(a) require applicants to be members, or non-members engaged in listed industries who pay Kshs.80,000, and not in arrears. Payment of the deposit itself indicated the 2nd and 3rd Petitioners were non-members, and they did not prove engagement in the listed industries. The 1st Petitioner, an incumbent Treasurer, remained eligible, but did not prove he applied for the position.

p. 6
02

Alleged violation of Article 36 of the Constitution and Sections 4, 34 and 56 of the Labour Relations Act

Holding

No violation proved; association was open only to those engaged in listed industries, and Section 56(1)(d) is inapplicable to branch elections

Reasoning

Having failed to prove membership or eligibility, the 2nd and 3rd Petitioners could not complain of denial of association. Notices dated 17th December 2020 showing date, time and venue were issued and received by the County Labour Officer and companies, and Registrar and Labour Officer letters confirmed compliance with the union's registered constitution. Section 56(1) concerns access for union activities, not elections.

p. 6
03

Alleged incarceration of petitioners and assault of the 3rd Petitioner

Holding

No evidence linking the 1st Respondent to the arrests; the branch secretary was not joined

Reasoning

There was no evidence that any union official reported petitioners to police, and the assault allegations against the Nakuru branch secretary could not be sustained as he was not joined to the proceedings and no vicarious liability was pleaded against the union.

p. 7
04

Validity of signatures and joinder of the 3rd Petitioner

Holding

Signatures were valid and joinder caused no prejudice

Reasoning

The 2nd and 3rd Petitioners gave authority to the 1st Petitioner to sign; an affiant may authenticate by mark or sign. The complaints across branches were broadly similar, so joining the 3rd Petitioner caused no prejudice and a separate suit was unnecessary.

p. 7

Legal principles established

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  • An affiant to an affidavit can signify signature by a mark, a sign or any hieroglyphic intended to authenticate a notice or memorandum
  • Section 56(1)(d) of the Labour Relations Act on employer premises is not applicable to trade union branch elections, which bring together employees of different organisations
  • A non-member may vie for a union elective position only if engaged in the industries listed in Rule 2(a) of the union's constitution and paying the prescribed deposit

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 36, 41, 47, 48, 50, 159(2)(d)
  • Labour Relations ActSections 4, 34, 56(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 23(1)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Tailors and Textiles Workers Union ConstitutionRules 2(a), 21(d), 21(e)

Cases cited (1)

  • Wagichiengo v Gerald
    (1988) eKLR
Jurisdiction invoked
Articles 27, 36, 41, 47 and 50 of the Constitution of Kenya, 2010 (fundamental rights and freedoms enforcement, heard with a notice of motion under Rule 23(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013)

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, "Muthama Ngumbi & 2 others v Tailors and Textiles Workers Union & another [2021] KEELRC 2134 (KLR)", Case Analysis (2021). Petition dated 13th January 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2134/eng@2021-02-16

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