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ELRCDismissedPetition dated 2022 (application dated June 8, 2022)· [2022] KEELRC 1409 (KLR)

Tony Cheruiyot v Kenya Medical Practioners Pharmacist & Dentist’s Union (KMPDU) & 3 others (Constitutional Petition E017 of 2022) [2022] KEELRC 1409 (KLR)

Employment and Labour Relations Court
10 June 2022
ANAbuodha J N
1,336 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court allowed KMPDU's 2022 elections to proceed, ruling that a judge's order for fresh elections overrides the union constitution's own timelines.

What this practically means

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Executive summary

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The petitioner, a member of KMPDU, moved the court by application dated June 8, 2022 seeking an interim injunction to restrain the 1st to 3rd respondents from holding KMPDU national elections scheduled for June 11, 2022. He argued that the union constitution (clause 14(4)) required elections in April of each election year, that shifting the election date contravened the constitution, that article 9(6) required publication of the voters' register one month before elections, and that insufficient notice had been given, contrary to Article 41(c) of the Constitution. The respondents, through Dr. Davji Atellah, replied that the elections were governed by the decision in Nairobi ELRC Petition No. E080 of 2021, in which Wa Makau J nullified the May 2021 elections and ordered fresh elections within 45 days; the 45 days ran from April 27, 2022 when the stay application was dismissed, and notice of elections was issued on April 30, 2022. They also raised res judicata and delay, noting substantial resources had been committed. The court applied the settled principles for interim injunctions, holding that once the court ordered fresh elections within 45 days, the election timelines were set by the court order rather than the union constitution. The June 6, 2022 notice concerned an NEC meeting, not the elections; the operative notice was that of April 30, 2022. The petitioner was guilty of delay, and the balance of convenience favoured the respondents, since the union had not been able to elect office bearers due to prior court intervention. The injunction was declined, but the petitioner remained free to prosecute the petition to conclusion and, if successful, have any elections nullified. Judgment delivered at Eldoret on June 10, 2022 by Abuodha J.

Key legal issues

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01

Whether the scheduled elections contravened clause 14(4) of the KMPDU constitution requiring elections in April

Holding

No - the elections were governed by the court order of Wa Makau J directing fresh elections within 45 days of the April 27, 2022 ruling, not the constitution's timeline

Reasoning

The 2021 elections were nullified and fresh elections ordered within 45 days. Stay lapsed on April 27, 2022, so the 45 days ran from that date. Notice issued April 30, 2022 was within the court-ordered timeline. The court-ordered process displaced the constitutional timeline, so holding elections on June 11, 2022 was lawful.

p. 3
02

Whether the petitioner showed grounds for an interlocutory injunction

Holding

No prima facie case, inordinate delay, and the balance of convenience favoured the respondents

Reasoning

Applying the settled Giella principles, the court found the petitioner's complaints unsustainable since the correct election notice was issued April 30, 2022. The June 6 notice concerned an NEC meeting, not elections. Significant resources had been committed, the union had been unable to elect office bearers due to court intervention, and the petitioner could still prosecute the petition to conclusion.

p. 3

Legal principles established

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  • Where a court orders fresh union elections within a fixed period, elections are to be conducted in accordance with the court order and not the timelines in the union's constitution

Court orders

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  1. 1.The interlocutory injunction restraining the 1st to 3rd respondents from organizing or conducting the KMPDU national elections set for June 11, 2022 is declined
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade union disputes under Article 41 of the Constitution and the Labour Relations Act (petition challenging union elections)

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, "Tony Cheruiyot v Kenya Medical Practioners Pharmacist & Dentist’s Union (KMPDU) & 3 others (Constitutional Petition E017 of 2022) [2022] KEELRC 1409 (KLR)", Case Analysis (2022). Petition dated 2022 (application dated June 8, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1409/eng@2022-06-10

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