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ELRCPartially AllowedPetition dated 2nd February 2021, filed 23rd February 2021· [2022] KEELRC 375 (KLR)

Francis Cheng'oli & 2 others v Kenya Universities Staff Union [2022] KEELRC 375 (KLR)

Employment and Labour Relations Court
18 March 2022
MOMaureen Onyango
5,724 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 cancelled union constitution changes that favoured officials and sidelined members, restoring the older 2013 rules.

What this practically means

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Executive summary

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Three members of the Kenya Universities Staff Union (KUSU) petitioned the Employment and Labour Relations Court challenging amendments to the union's constitution revised in August 2019 and registered by the Registrar of Trade Unions in July 2020. They complained of draconian clauses - exorbitant fees for requisitioning a Special General Meeting, high nomination fees, eight-year service and diploma qualification requirements, and vetting of nominations by the secretariat composed of contestants - which they said barred members from vying for elective posts, and exempted incumbents from the same requirements. They sought declarations that the 2020 constitution was a nullity and the 2013 constitution reinstated, plus orders for fresh elections and related electoral reliefs. The Respondent maintained the amendments followed due process under Article 21 of the 2013 constitution, beginning with a 2017 National Governing Council resolution, newspaper publication of the notice of objections by the Registrar, and passage at a National Delegates Conference at Bungoma on 30th August 2019, with gazettement on 8th May 2020. The court found that the amendments were never shared with members, the newspaper notices were barely legible and did not state the nature of the amendments, and were posted only after the amendments had been made. The eight-year service eligibility rule and the exemption of serving officers from professional qualifications were held discriminatory under Section 34(2)(a) of the Labour Relations Act and Articles 27 and 41 of the Constitution. The petition was allowed in part: declarations issued that the rights of the Petitioners were violated, the 2020 constitution is a nullity, the 2013 constitution is reinstated, and members have a right to participate in union affairs; electoral prayers were declined as overtaken by events. Costs to the Petitioners.

Key legal issues

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01

Whether the members were accorded participation in the amendment of the union constitution

Holding

The Petitioners proved the Respondent did not give them an opportunity to participate in or be consulted on the amendments

Reasoning

The court found from the replying affidavit and documents that the proposed amendments were not shared with members, who were only asked to submit proposals. The newspaper notices were barely legible, did not state the nature of the amendments, and were posted by the Registrar after the amendments had already been made by the National Delegates Conference. The averments that members' input was never sought were not rebutted.

p. 8
02

Whether the impugned clauses were discriminatory

Holding

The eight-year service requirement and the exemption of serving officers from professional qualifications were discriminatory and violated Section 34(2)(a) of the Labour Relations Act and Articles 27 and 41 of the Constitution

Reasoning

The court examined the specific amendments, including the increase in fees for requisitioning a Special Delegates Conference, aspirant fees and eligibility criteria. The requirement that only members who had served not less than eight years be eligible for national office, and the exemption of serving officers from professional qualifications, both favoured incumbents and conflicted with Section 34(2)(a) of the Labour Relations Act and Article 27.

p. 8

Legal principles established

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  • A trade union constitution must not contain a provision that discriminates unfairly between incumbents and other candidates in elections.
  • Exemption of serving officers from qualification requirements applicable to other candidates is discriminatory.

Court orders

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  1. 1.A declaration that the Petitioners' fundamental rights and freedoms under Articles 27 and 41 of the Constitution have been contravened and violated by the Respondent
  2. 2.A declaration that the Kenya University Staff Union constitution registered on the 15th July 2020 by the Registrar of Trade Unions is a nullity and unconstitutional
  3. 3.A declaration that the Kenya University Staff Union constitution registered on the 3rd April 2013 is reinstated
  4. 4.A declaration that the Petitioners and the members of the Union have a right to participate in the affairs of the Union including vying for elective seats of the Union
  5. 5.A declaration expunging all the discriminatory, illegal and offensive clauses from the KUSU Constitution
  6. 6.The Respondent shall pay the Petitioners' costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10(2)(1) and (b), 23(3), 27, 41, 48, 159(2)(d)
  • Labour Relations ActSections 14(1)(b), 27, 34(2); First Schedule
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Musili Wambua v Attorney General & 2 others
    [2015] eKLR
  • Nyarangi & 3 Others v Attorney General
    [2008] KLR 688
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others
    [2012] eKLR
  • Peter K. Waweru v Republic
    [2006] eKLR
  • Anarita Karimi Njeru v Republic (No. 1)
    (1979) 1 KLR 154
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    Civil Appeal No. 290 of 2012 (2013) eKLR
  • David Mathu Kimingi v SMEC International Pty Limited
    [2021] eKLR
Jurisdiction invoked
Articles 27 and 41 of the Constitution of Kenya 2010; Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Francis Cheng'oli & 2 others v Kenya Universities Staff Union [2022] KEELRC 375 (KLR)", Case Analysis (2022). Petition dated 2nd February 2021, filed 23rd February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/375/eng@2022-03-18

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