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ELRCDismissedNot stated in judgment· [2023] KEELRC 2484 (KLR)

Mshihiri v Dock Workers Union (Petition 11 of 2022) [2023] KEELRC 2484 (KLR)

Employment and Labour Relations Court
12 October 2023
3,758 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 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

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Executive summary

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The petitioner, a paid-up member and employee of the respondent trade union, petitioned the court alleging that the union's by-election for the position of National Trustee held on 30 June 2022 was marred by irregularities: intimidation of her polling agents, wrongful counting of her votes as spoilt, unannounced additional polling stations at Eldoret and Kisumu, a wrong nomination form issued at the nomination stage, and discrimination on the basis of age. She sought declarations of violation of Articles 27, 41 and 47 of the Constitution, general damages, disbandment of the elections board, fresh by-elections, and costs. The respondent, through the Replying Affidavit of General Secretary Simon Kiprono Sang, contended the petition was improperly brought, that the elections were properly conducted under the LRA and the union constitution, and that events had overtaken the petition since all trustees had left membership, leaving all trustee positions vacant. The court held the petition was not a proper one, as Article 41 rights are enacted in the LRA which provides adequate remedies, and no question of constitutional interpretation was raised. The discrimination claim lacked particulars; Article 41 was not violated as the petitioner participated and finished 4th of 18; the Article 47 claim failed because the impugned elections board decision was not annexed. The court found no merit in the petition and dismissed it. Notably, the judgment contains a contradiction on costs, stating no costs would be awarded for needless invocation of the petition yet the final order dismissed the petition with costs to the respondent.

Key legal issues

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01

Whether the petition was properly instituted under Rule 7 of the ELRC Procedure Rules

Holding

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

Reasoning

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.

p. 5
02

Whether the petitioner proved discrimination contrary to Article 27

Holding

No; particulars of discrimination were not addressed. The mix-up in issuance of nomination forms cannot solely invoke Article 27

Reasoning

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.

p. 6
03

Whether Article 41(2)(c) was violated

Holding

No; the petitioner was allowed to participate, finished 4th of 18 applicants for 3 positions, and was not prevented from participating in union activities

Reasoning

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.

p. 6
04

Whether Article 47 (fair administrative action) was violated

Holding

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

Reasoning

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).

p. 7
05

Whether the elections board should be disbanded and fresh by-elections ordered

Holding

No; the order would be overarching and unjustified, and events had overtaken the petition since all trustee positions fell vacant

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The petition is hereby dismissed

Authorities

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Legislation

  • Labour Relations Act, 2007Section 36(2)
  • Labour Relations Act, 2007Section 35(4)
  • Labour Relations Act, 2007Section 35(6)
  • Labour Relations Act, 2007Section 34(3)
  • Labour Relations Act, 2007Section 4
  • Labour Relations Act, 2007Section 5
  • Constitution of Kenya, 2010Article 27(1), (2) and (5)
  • Constitution of Kenya, 2010Article 41(2)(c)
  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Not specified

Cases cited (1)

  • Mohammed Abduba Dida v Debate Media Limited & another
    [2018] eKLR
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

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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, "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.