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ELRCDismissedJudicial Review Application (Notice of Motion dated 19th December 2022)· [2023] KEELRC 1091 (KLR)

Republic v Kenya National Union of Nurses & another; Barasa & another (Exparte Applicants) (Judicial Review Cause 3 of 2022) [2023] KEELRC 1091 (KLR)

High Court of Kenya
27 April 2023
3,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The High Court upheld a nurses' union's expulsion of two branch officials, ruling its disciplinary process followed the union constitution, while telling them to sue separately for unpaid dues.

What this practically means

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Executive summary

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The Exparte Applicants, George Barasa (Branch Secretary) and Felix Wasike (Branch Chairperson) of the Bungoma Branch of the Kenya National Union of Nurses, sought judicial review orders of certiorari to quash their suspension (6th October 2022) and expulsion (13th October 2022), mandamus to reinstate them, and mandamus directing payment of branch rent arrears, salary and allowance arrears from May 2021, and remittance of 50% of branch collections, together with interim orders, a declaration of contempt, general damages and costs. They argued the disciplinary process was a sham, violating Chapter XVI Articles 9-13 of the union constitution, that they were denied a hearing, that no Branch Governing Council or National Executive Council meeting validly resolved against them, and that the 2nd Respondent, General Secretary Seth Panyako, acted with bias and ultra vires. The Respondents maintained the expulsion followed a duly convened National Executive Council meeting on 13th October 2022 at Webuye, producing minutes and an attendance list. The court found the applicants had been given opportunities to respond in writing and failed to appear at the hearing; that there was substantive compliance with Chapter XX1 of the union constitution; and that the applicants' conduct, including diverting union dues and forging letterheads, was detrimental to the union on a balance of probabilities. The irregular suspension was overtaken by the expulsion. Mandamus was held inappropriate for the monetary claims, which should be pursued as normal claims or under union procedures. The Notice of Motion dated 19th December 2022 was dismissed with no order as to costs.

Key legal issues

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01

Whether the applicants were accorded the right to be heard before suspension and expulsion

Holding

Yes - both applicants responded in writing to the allegations, notice was given, and the National Executive Council met on 13th October 2022 with minutes and attendance list produced

Reasoning

The court noted the applicants replied to the disciplinary notices by letters dated 30th and 31st May 2022. The respondents produced minutes (SP-14) and a signed attendance list (SP-15) of the NEC meeting of 13th October 2022 at Webuye, satisfying the union constitution's requirement of an opportunity to state one's case personally and in writing.

p. 8
02

Whether the suspension and expulsion complied with the union constitution

Holding

The expulsion substantially complied with Chapter XX1 of the union constitution; the earlier suspension of 6th October 2022 (issued before the hearing) violated the constitution but was overtaken by events

Reasoning

The union constitution permits the National Executive/Governing Council to suspend or expel members for conduct detrimental to the union's interests after an opportunity to be heard. The court found the NEC meeting of 13th October 2022 duly resolved to expel the applicants, rendering the irregular prior suspension moot. Detrimental conduct, including diverting union dues and forging letterheads, was proved on a balance of probabilities.

p. 8
03

Whether the allegations against the applicants were proved

Holding

Yes - on a balance of probabilities the applicants' conduct was detrimental to the union's interests

Reasoning

The court relied on evidence including the letter of 12th July 2021 on change of bank signatories and the letter to Bungoma County withdrawing union members written on National office letterhead, finding the applicants guilty of the allegations and that the expulsion was justified under Chapter XX1 of the union constitution.

p. 8
04

Whether mandamus lies for the claimed rent, allowances and salary arrears

Holding

No - such claims are not amenable to judicial review and must be pursued as ordinary claims

Reasoning

The court held that entitlement to allowances, if any, is an accrued right requiring proof of outstanding claims for service, and rent arrears should be pursued with the union governing council under union constitution procedures. Judicial review remedies address public/decision-making illegality, not substantive private claims requiring evidentiary proof.

p. 8

Legal principles established

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  • Judicial review (mandamus) is not an appropriate remedy for claims of unpaid allowances/salaries which have not been established; such claims must be pursued as ordinary claims where evidence of the outstanding amounts will be required.
  • Where an internal dispute resolution/appeal mechanism exists in an organisation's constitution, it is the appropriate redress mechanism for members dissatisfied with disciplinary decisions.

Court orders

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  1. 1.The Notice of Motion dated 19th December 2022 is dismissed
  2. 2.No costs awarded - the court exercised its discretion and declines to award costs

Authorities

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Legislation

  • Labour Relations ActSections 48 and 50
  • Constitution of the Kenya National Union of NursesChapter XX1 Articles (1) and (2); Chapter XVI Articles 9-13; Chapter III(7); Chapter X1(3)
Jurisdiction invoked
Leave of the High Court granted on 13th October 2022 to institute judicial review proceedings (orders of certiorari and mandamus)

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, "Republic v Kenya National Union of Nurses & another; Barasa & another (Exparte Applicants) (Judicial Review Cause 3 of 2022) [2023] KEELRC 1091 (KLR)", Case Analysis (2023). Judicial Review Application (Notice of Motion dated 19th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1091/eng@2023-04-27

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