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ELRCDismissedJudicial Review Application (Amended Notice of Motion dated 19th December 2022)· [2023] KEELRC 3478 (KLR)

Barasa & another v Kenya National Union of Nurses & another (Judicial Review Cause 3 of 2022) [2023] KEELRC 3478 (KLR)

Employment and Labour Relations Court
27 April 2023
3,882 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld the expulsion of two union officials, ruling the union followed its constitution and that money claims don't belong in judicial review.

What this practically means

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Executive summary

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The Exparte Applicants, George Barasa (Branch Secretary) and Felix Wasike (Branch Chairperson) of the Bungoma Branch of the Kenya National Union of Nurses, sought judicial review orders of certiorari to quash their suspension (6th October 2022) and expulsion (13th October 2022), mandamus to reinstate them and to compel payment of rent arrears, allowances and salary arrears, remittance of branch funds, interim orders, a declaration of contempt and general damages. They alleged the disciplinary process violated Chapter XVI Articles 9-13 of the union constitution, that the Secretary General acted unilaterally and with bias, and that they were denied a hearing. The Respondents, through the replying affidavit of Seth Panyako, maintained that the National Executive Council duly met on 13th October 2022 at Webuye and expelled the applicants in accordance with the union constitution, producing minutes and an attendance list. The court found that both applicants had responded in writing to the disciplinary allegations in May 2022, that the National Executive Council meeting of 13th October 2022 did take place, and that there was substantive compliance with Chapter XX1 of the union constitution. While the suspension issued before the hearing violated the union constitution, it was overtaken by the subsequent expulsion. The court found evidence supporting the allegations against the applicants and directed them to the union's internal appeal mechanism. Monetary claims for rent, allowances and salaries were held unsuitable for judicial review. The notice of motion was dismissed with no order as to costs.

Key legal issues

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01

Whether the suspension and expulsion of the applicants complied with the union constitution

Holding

There was substantive compliance with Chapter XX1 of the union constitution; the applicants were given opportunities to respond in writing and a National Executive Council meeting was duly held on 13th October 2022

Reasoning

The court examined minutes and an attendance list (SP-14 and SP-15) showing a National Executive Council meeting on 13th October 2022 at Webuye with 11 members present, whose agenda was the discipline of the two applicants. Both applicants had responded in writing to the allegations in May 2022. Although the meeting findings were poorly worded, the meeting resolved to expel the applicants under the union constitution.

02

Whether the right to be heard was violated

Holding

No violation - the applicants were granted a right to be heard, responded in writing, and failed to appear at the disciplinary meeting

Reasoning

The court found that George Barasa responded to the May 2022 notice by letter dated 30th May 2022 and Felix Wasike by letter dated 31st May 2022. The applicants claimed they attended the venue on 13th October 2022 and found no officials, but minutes and a signed attendance list were produced proving the meeting took place.

p. 8
03

Whether the suspension decision of 6th October 2022 should be quashed

Holding

The suspension issued before the hearing was a violation of the union constitution but was overtaken by events and no quashing order was necessary

Reasoning

The letter of suspension dated 6th October 2022 preceded the disciplinary hearing of 13th October 2022, contravening the union constitution. However, since the applicants were subsequently expelled on the same grounds following a validly constituted meeting, the irregular suspension became academic.

p. 8
04

Whether the court could grant mandamus for unpaid rent, allowances and salary arrears

Holding

Judicial review is not the appropriate remedy; such monetary claims must be pursued as ordinary claims or internally under the union constitution

Reasoning

The court held that rent arrears for the branch should be pursued with the union governing council under the union constitution's procedures. Allowance and salary arrears, being accrued rights requiring proof of outstanding service claims, should be pursued as normal claims rather than through judicial review.

p. 8

Legal principles established

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  • A union member facing disciplinary action is adequately heard where they are given an opportunity to respond in writing to the allegations, even if they fail to attend the disciplinary meeting
  • Substantive compliance with a union constitution's disciplinary procedure suffices; an irregular interim suspension is overtaken by a subsequently valid expulsion
  • Judicial review mandamus is not the appropriate remedy for unestablished monetary claims such as unpaid allowances
  • A party dissatisfied with expulsion from a union should pursue the internal appeal mechanism under the union constitution

Court orders

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  1. 1.The Notice of Motion dated 19th December 2022 is dismissed
  2. 2.No costs awarded - the court declines to award costs

Authorities

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Legislation

  • Labour Relations ActSections 48 and 50
  • Constitution of the Kenya National Union of NursesChapter XVI Articles 9-13; Chapter XX1 Articles (1) and (2); Chapter III(7); Chapter X1(3)
Jurisdiction invoked
Leave of the High Court to initiate judicial review proceedings (order of certiorari and mandamus)

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, "Barasa & another v Kenya National Union of Nurses & another (Judicial Review Cause 3 of 2022) [2023] KEELRC 3478 (KLR)", Case Analysis (2023). Judicial Review Application (Amended Notice of Motion dated 19th December 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3478/eng@2023-04-27

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