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ELRCDismissedNot stated in the judgment (Cause commenced by Amended Memorandum of Claim filed 15 March 2023)· [2023] KEELRC 2975 (KLR)

Odiwuor v Universities Academic Staff Union & 4 others; Otieno & another (Interested Parties) (Cause E015 of 2023) [2023] KEELRC 2975 (KLR)

Employment and Labour Relations Court
22 November 2023
1,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, Deputy Secretary of the UASU Maseno Chapter, challenged the by-election of the 3rd Respondent as chapter secretary held on 10 March 2023. He sought a declaration that the 3rd Respondent's candidature violated sections 31 and 34 of the Labour Relations Act and various articles of the UASU Constitution, nullification of the election, a fresh by-election, and a permanent injunction barring the 3rd Respondent from contesting. The Claimant's case was that the 3rd Respondent, having been dismissed from Maseno University's service on 27 February 2023, ceased to be an academic staff member and therefore lost chapter membership and eligibility. The Respondents denied cessation of membership and contended the Claimant bore, and failed to discharge, the burden of proof. The Court declined to address the exhaustion of alternative dispute resolution avenues, since that issue was not among the Agreed Issues. On the merits, the Court held that the constitutional provisions cited by the Claimant did not terminate membership upon dismissal; membership could be lost only through resignation by three months' written notice, expulsion by the National Executive Committee, or removal of a chapter officer by the members, none of which occurred. There was no evidence of subscription arrears. The Claimant himself conceded the 3rd Respondent remained a member at national level. Under section 31 of the Labour Relations Act, the 3rd Respondent had been engaged and employed in the sector UASU represents and was eligible to contest and hold office. The Cause was dismissed with costs.

Key legal issues

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01

Exhaustion of alternative dispute resolution avenues

Holding

The Court declined to determine the exhaustion issue because it was not among the Agreed Issues framed by the parties

Reasoning

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.

p. 2
02

Whether the 3rd Respondent remained a member of UASU and the Maseno chapter after dismissal

Holding

He remained a member; the Claimant failed to prove otherwise

Reasoning

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.

p. 3
03

Eligibility of the 3rd Respondent to contest and hold chapter office

Holding

He was eligible; Article 4(i)(a) does not terminate membership upon dismissal from employment

Reasoning

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.

p. 4
04

Whether the election violated section 31 of the Labour Relations Act

Holding

No violation; the 3rd Respondent had been engaged and employed within the sector UASU represents

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Cause is dismissed with costs

Authorities

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Legislation

  • Labour Relations Actsections 31 and 31(4)
  • Labour Relations Actsection 34
  • Universities Academic Staff Union (UASU) Constitutionpreamble; Articles 1, 3, 4(i)(a), 4(i)(h), 4(i)(i), 4(i)(j), 5(d), 8(b), 9(b), 14(c)(d)(i), 19(g)(h), 20(c), 22(h)
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

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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, "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.