Odiwuor v Universities Academic Staff Union & 4 others; Otieno & another (Interested Parties) (Cause E015 of 2023) [2023] KEELRC 1007 (KLR)
The bottom line
#Kenya's Employment Court declined to block a dismissed lecturer from serving as a union secretary, because dismissal may not automatically disqualify someone from union office.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal from employment disqualifies a person from contesting or holding union office
At the interlocutory stage it is debatable whether dismissal alone locks a person out of union office, so the applicant failed to establish a prima facie case
The court examined articles 4, 14 and 20 of the Union's constitution alongside section 31(1) of the Labour Relations Act. Section 31(1) permits persons who are or have been employed in the sector to be union officials. On that basis, the question whether mere dismissal disqualifies the 3rd Respondent was a serious debatable matter, not free from doubt, so the prima facie case threshold was not met at the interlocutory stage and the injunction could not issue.
Whether membership eligibility criteria apply to cessation of membership
It is debatable whether Article 4(i)(a) of the Union's Constitution applies to determinations of whether membership comes to an end
The court considered that the eligibility criteria in Article 4(i)(a) govern who may become a member, and it was debatable whether those same criteria could be invoked to determine whether membership ends following dismissal. This doubt again weighed against the existence of a prima facie case and justified declining the interlocutory orders while leaving the matter to full trial.
Competency of the 3rd Respondent's replying affidavit
The affidavit was competent; the applicant produced no evidence rebutting the 3rd Respondent's assertion of authority
The applicant objected that there was no written authority from the 1st Respondent for the 3rd Respondent to swear the affidavit. The court noted that the 3rd Respondent was an elected chapter official who deposed that he had requisite authority, and the applicant adduced no evidence to the contrary. The court therefore could not disregard the affidavit and its assertions at the interlocutory stage.
Legal principles established
#- Under section 31(1) of the Labour Relations Act, officials of a trade union must be persons who are or have been engaged or employed in the sector for which the union is registered; accordingly dismissal may not automatically disqualify one from union office
Court orders
#- 1.The orders sought in the Motion dated 13 March 2023 are declined
- 2.The Cause should be progressed to a hearing on the merits
- 3.Costs of the Motion in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over trade union affairs (Cause seeking injunctive relief under the Union constitution and the Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odiwuor v Universities Academic Staff Union & 4 others; Otieno & another (Interested Parties) (Cause E015 of 2023) [2023] KEELRC 1007 (KLR)", Case Analysis (2023). Cause (not stated in judgment) - Motion dated 13 March 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1007/eng@2023-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.