Mshihiri v Dock Workers Union (Petition 11 of 2022) [2023] KEELRC 2484 (KLR)
The bottom line
#The Employment and Labour Relations Court in Mombasa dismissed a union election challenge, ruling that the Labour Relations Act—not a constitutional petition—is the right route for such disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was properly instituted under Rule 7 of the ELRC Procedure Rules
The petition was not proper; labour rights under Article 41 are enacted in the LRA which provides adequate remedies, and no question of constitutional interpretation was raised
The court held the substantive orders sought are matters governed by the LRA, which together with the Court Rules provide a clear procedure for redress. Absent a claim that the LRA's remedies are inadequate or a prayer for invalidity of the Act, the constitutional route was a needless invocation that ought to have been addressed before hearing.
Whether the petitioner proved discrimination contrary to Article 27
No; particulars of discrimination were not addressed. The mix-up in issuance of nomination forms cannot solely invoke Article 27
Relying on Mohammed Abduba Dida v Debate Media Limited, the court applied the three-stage enquiry on differentiation. The petitioner merely alleged irregularities without demonstrating that any differentiation was unreasonable, arbitrary or for an illegitimate purpose.
Whether Article 41(2)(c) was violated
No; the petitioner was allowed to participate, finished 4th of 18 applicants for 3 positions, and was not prevented from participating in union activities
Participation in an election is not guaranteed to result in election; the democratic process decides who becomes trustee. The petitioner suffered no denial of her right to form, join or participate in union activities.
Whether Article 47 (fair administrative action) was violated
No; the petitioner failed to annex the decision of the elections board sought to be nullified, which was fatal, and there was nothing to nullify
An adverse decision is core to invoking Article 47. The petitioner did not annex the impugned decision, denying the court the chance to interrogate it; procedural lapses cannot be cured by invoking Article 47(1) and (2).
Whether the elections board should be disbanded and fresh by-elections ordered
No; the order would be overarching and unjustified, and events had overtaken the petition since all trustee positions fell vacant
Under Section 4 of the LRA every union may conduct elections per its constitution unless its provisions are shown to be unlawful. All trustees had ceased membership, leaving all positions vacant, and the respondent undertook to hold a by-election in which the petitioner would participate.
Legal principles established
#- Filing a petition directly under the Constitution to enforce labour rights governed by the LRA, without alleging invalidity of the Act or inadequacy of its remedies, is not a proper petition
- A party alleging discriminatory treatment must plead and prove the particulars of the discrimination; a three-stage enquiry applies as set out in Dida v Debate Media
- Failure to annex the impugned decision sought to be nullified is fatal to a petition
- An election cannot be nullified to benefit only one candidate; the entirety of the elections once challenged must be interrogated
Court orders
#- 1.The petition is hereby dismissed
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petitor alleged infringement of Articles 27, 41 and 47); Employment and Labour Relations Court Procedure Rules, 2016, Rule 7
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mshihiri v Dock Workers Union (Petition 11 of 2022) [2023] KEELRC 2484 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2484/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.