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ELRCDismissedPetition No. E001 of 2021 (consolidated with Petition No. E107 of 2020)· [2021] KEELRC 2278 (KLR)

David K. Songok & 8 others v Kenya Electrical Traders and Allied Workers Union & 11 others [2021] KEELRC 2278 (KLR)

Employment and Labour Relations Court
22 January 2021
MOMaureen Onyango
4,883 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court allowed KETAWU's union elections to proceed, ruling that suspended officials who skipped internal appeal processes could not stop them.

What this practically means

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Executive summary

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Two petitions against the Kenya Electrical Trades and Allied Workers Union (KETAWU) challenging its branch and national elections scheduled for 9th and 23rd January 2021 were consolidated, with Petition E107 of 2020 proceeding under Petition E001 of 2021. The petitioners, suspended union officials, sought interim suspension of the elections and declarations that constitutional clauses barring suspended or contract staff from vying offended Articles 27, 41(2)(c) of the Constitution and Section 34(2)(a) of the Labour Relations Act. Interim injunctions had been granted ex parte on 4th January 2021 and varied on 7th January 2021; the respondents sought to set them aside. Applying the Giella v Cassman Brown principles, the court found no prima facie case because the applicants' suspension was sub judice following orders in Cause No. 2079 of 2017 directing them to exhaust internal disciplinary processes, which they never did. Any loss from ineligibility under Article 19.5 of the union constitution was speculative given their terms were expiring in January 2021. The balance of convenience favoured proceeding with the delegates conference and elections since nine of twelve branches had already elected without dispute, and the conference had other agenda including proposed constitutional amendments and hearing the applicants' appeals. The court also noted the last-minute timing of the petitions. Both applications were dismissed with no orders as to costs, with the court reserving the power to nullify the elections if later found irregular.

Key legal issues

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01

Whether the applicants established a prima facie case with probability of success

Holding

No prima facie case established because the issue of the applicants' suspension is sub judice and the court had barred them from returning before exhausting internal disciplinary processes

Reasoning

The applicants in E001 of 2021 were suspended in 2017. In Cause No. 2079 of 2017 the court directed them to exhaust internal disciplinary machinery before returning to court. They never complied or returned. Their eligibility under Article 19.5 of the union constitution depends on lifting the suspension, a matter still pending; hence the election dispute could not ground an injunction.

p. 8
02

Whether the applicants would suffer irreparable loss if the injunction was not granted

Holding

No irreparable loss; any loss was speculative

Reasoning

Under Article 19.5 of the union constitution, suspended members cannot vote or hold office until suspension is lifted. The applicants had done nothing since February 2018 to clear the suspensions, and their terms of office were expiring in January 2021 anyway. Their claimed loss was therefore speculative and not irreparable harm compensable by an injunction.

p. 8
03

Where the balance of convenience lay

Holding

In favour of allowing the delegates conference and elections to proceed

Reasoning

Nine of twelve branches had already held elections without dispute; only three were stopped by interim orders. The interests of delegates in the nine branches outweighed the applicants' interests. The conference also had other agenda items, including constitutional amendments and hearing the applicants' appeals. Last-minute filing, days before the elections, weighed against relief.

p. 8
04

Whether the suspension issue was res judicata

Holding

The respondents argued res judicata but the court treated the suspension matter as still sub judice pending exhaustion of internal processes

Reasoning

The ruling in Cause No. 2079 of 2017 dismissed the applicants' application and directed them to exhaust internal disciplinary process before further redress. Since they complied only partially (an appeal filed in 2017) and never returned to court, the subject matter remained pending, barring this court from making further orders on the suspension.

p. 8

Legal principles established

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  • The Court has power to nullify union elections found to be irregular, so interim restraint is not necessary where the election can be challenged after the fact
  • Balance of convenience favours allowing an election to proceed where the majority of branches and delegates have no dispute with the process

Court orders

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  1. 1.Dismissal of the application dated 19th December 2020 in Petition E001 of 2021
  2. 2.Dismissal of the application dated 23rd December 2020 in Petition E107 of 2020
  3. 3.No orders for costs

Authorities

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Legislation

  • Labour Relations ActSection 34, including 34(2)(a) and 34(3)
  • Constitution of Kenya, 2010Articles 10, 23(e), 27(1), (2), (3) and (5), 36(1), 41(2)(c), 47(1), 48, 159(2)(d)
  • Employment Act
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • ILO Convention Concerning Freedom of AssociationArticles 3(1) and (2) and 8(2)
  • International Covenant on Civil and Political Rights, 1966Article 26

Cases cited (3)

  • Giella v Cassman Brown
  • Mrao Limited v First American Bank of Kenya Limited
  • Uhuru Highway Development Limited v Central Bank of Kenya
Jurisdiction invoked
Article 162(2) of the Constitution; Section 34(4) of the Labour Relations Act (disputes connected to trade union elections referred to the Industrial Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "David K. Songok & 8 others v Kenya Electrical Traders and Allied Workers Union & 11 others [2021] KEELRC 2278 (KLR)", Case Analysis (2021). Petition No. E001 of 2021 (consolidated with Petition No. E107 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2278/eng@2021-01-22

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