Odiwuor v Universities Academic Staff Union & 4 others; Otieno & another (Interested Parties) (Cause E015 of 2023) [2023] KEELRC 2975 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Exhaustion of alternative dispute resolution avenues
The Court declined to determine the exhaustion issue because it was not among the Agreed Issues framed by the parties
Although the Respondents raised Article 5(d) of the Union's Constitution in submissions, the parties had narrowed the dispute through Agreed Issues which did not include exhaustion of internal dispute resolution mechanisms. The Court held it would not address an issue the parties themselves did not consider determinative when narrowing the questions in dispute.
Whether the 3rd Respondent remained a member of UASU and the Maseno chapter after dismissal
He remained a member; the Claimant failed to prove otherwise
The Claimant produced no membership register to prove cessation of membership. The constitutional provisions cited (Articles 19(g) and (h)) concern removal and suspension of chapter officers, not loss of membership. Membership could be lost only by resignation, expulsion by the National Executive Committee, or removal by chapter members, none of which occurred. The 3rd Respondent was not in arrears of subscriptions.
Eligibility of the 3rd Respondent to contest and hold chapter office
He was eligible; Article 4(i)(a) does not terminate membership upon dismissal from employment
Article 4(i)(a) governs who may become a member but does not outline how membership is lost. The Claimant himself conceded the 3rd Respondent remained a member at national level. Articles 9(b) and 22(h) require only that a contestant be up to date with subscriptions, and there was no evidence of arrears. Dismissal from Maseno University did not disqualify him.
Whether the election violated section 31 of the Labour Relations Act
No violation; the 3rd Respondent had been engaged and employed within the sector UASU represents
Section 31 requires union officials to be persons who are, or have been, engaged or employed in the sector for which the union is registered. The 3rd Respondent had been an academic staff member and had served within the sector. Despite the exception in section 31(4), the Court found him competent and eligible to contest and hold office within UASU.
Legal principles established
#- 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; a dismissed academic who had served in the sector remained eligible to contest and hold union office
- Membership of UASU is lost only through the mechanisms provided in the Union's Constitution – resignation by three months' written notice, expulsion by the National Executive Committee, or removal of a chapter official by the membership – not merely by dismissal from university employment
- The party alleging that a person has ceased to be a union member bears the burden of proof, and the Secretary General is the custodian of union records including the membership register
Court orders
#- 1.The Cause is dismissed with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the trade union dispute (Labour Relations Act and UASU Constitution invoked; no specific jurisdictional provision stated in the judgment)
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 2975 (KLR)", Case Analysis (2023). Not stated in the judgment (Cause commenced by Amended Memorandum of Claim filed 15 March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2975/eng@2023-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.