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ELRCOtherNot stated in the judgment text provided· [2023] KEELRC 2610 (KLR)

Munderu & 5 others v Panyako the General Secretary, Kenya National Union of Nurses & another (Petition 6 of 2020) [2023] KEELRC 2610 (KLR)

Employment and Labour Relations Court
19 October 2023
MOM. ONYANGO
2,480 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to pay union officials their claimed allowances without proof, but also refused to strike out their case before a full hearing.

What this practically means

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Executive summary

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This interlocutory ruling of the Employment and Labour Relations Court at Eldoret (M. Onyango, J) determined two competing applications in a petition filed by former officials of a trade union. The first application, dated 13th August 2020 and supported by Agnes Wangeci Munderu, sought orders compelling the Respondents to release outstanding NEC rebates and standing allowances of Kshs 1,260,000, Kshs 660,000 and Kshs 1,567,500 to the 1st, 2nd and 3rd Petitioners, who served as National Treasurer, National Deputy Treasurer and National Deputy Organizing Secretary of the 2nd Respondent union. The Petitioners argued they were entitled to allowances under sections 35 and 39(a) of the Labour Relations Act until the Registrar of Trade Unions effected changes to the official records, and that the union acted in bad faith by instituting disciplinary proceedings after the suit was filed. The Respondents, through General Secretary Seth Panyako, countered that rebates are refundable only upon proof of authorised official expenditure, that the Petitioners abdicated their duties and were lawfully expelled by an NEC resolution of 19th June 2020, and that they lost elections held on 26th February 2021. The Respondents' own application dated 17th June 2021 sought striking out of the Amended Petition as an abuse of court, arguing it was overtaken by events, that the Petitioners lacked locus standi, and that it offended the Anarita Karimi Njeru and Mumo Matemu drafting principles. The court dismissed the Petitioners' application, holding that no evidence had been tendered to confirm the claimed allowances were owed, such proof being a matter for the full hearing. It also declined the Respondents' striking-out application, holding the Petitioners had to be given an opportunity to adduce evidence and that striking out would be draconian at that stage. Both applications having failed, the court directed the parties to arrange for the suit to be heard and determined on the merits. No costs order was made. The court did not disturb any prior decision and all cited authorities were cited by the parties only.

Key legal issues

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01

Whether outstanding NEC rebates and standing allowances claimed by former union officials could be awarded on an interlocutory application

Holding

The application was dismissed for want of proof of entitlement

Reasoning

The court held that the Petitioners had not tendered any evidence confirming they were owed the allowances. Such prayers could only be granted after the parties had tendered all their evidence at the full hearing. The claim, being essentially a monetary claim, required proof of what services were performed, under whose authority, and what expenditure was incurred, none of which was demonstrated on the application.

p. 6
02

Whether the Amended Petition had been overtaken by events following the union elections of 26th February 2021 such that it should be struck out

Holding

The striking-out application was declined; the petition should proceed to a full hearing

Reasoning

The Respondents argued that the Petitioners were not re-elected and no longer held office, and that the petition's prayers were spent following a financial inquiry ordered by the court. The court held that the Petitioners had to be given an opportunity to adduce evidence on when their claims arose, and noted the pending disciplinary proceedings. Striking out the petition at that stage would be draconian.

p. 6

Legal principles established

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  • Interlocutory relief for payment of allowances cannot be granted where no evidence has been tendered to establish the entitlement; such claims must be established at the hearing.
  • A court should not strike out a petition as overtaken by events without affording the petitioners an opportunity to adduce evidence on their claims.

Court orders

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  1. 1.The Petitioners' application dated 13th August 2020 is dismissed
  2. 2.The Respondents' application dated 17th June 2021 to strike out the Amended Petition is declined
  3. 3.Parties are directed to arrange to have the suit heard and determined on the merits

Authorities

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Legislation

  • Labour Relations ActSection 2
  • Labour Relations ActSection 35
  • Labour Relations ActSection 39(a)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 4

Cases cited (6)

  • Mumo Matemu vs Trust Society of Human Rights Alliance (2013) eKLR
    (2013) eKLR
  • Anarita Karimi Njeru (1979) KLR 154
    (1979) KLR 154
  • Naftali Mogaka Nyabonga v Kisii County Government & Another (2022) eKLR
    (2022) eKLR
  • IEBC & Another vs Stephen Mutinda Mule & 3 others (2014) eKLR
    (2014) eKLR
  • Raila Amolo Odinga & Another vs IEBC & 2 Others (2017) eKLR
    (2017) eKLR
  • Shop & Delivery Limited t/a Betika v Njagi (Miscellaneous Case E 145 of 2022) (2023) KEELRC 228 (KLR)
    (2023) KEELRC 228 (KLR)
Jurisdiction invoked
Not expressly stated; invoked as a constitutional petition under the court's jurisdiction with reference to the Labour Relations Act and the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Munderu & 5 others v Panyako the General Secretary, Kenya National Union of Nurses & another (Petition 6 of 2020) [2023] KEELRC 2610 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2610/eng@2023-10-19

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