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ELRCDismissedNot stated in judgment· [2024] KEELRC 269 (KLR)

Petition by members of the National Association for Orthopaedic Technologists in Kenya

Employment and Labour Relations Court
16 February 2024
BOBYRAM ONGAYA
2,350 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a members' petition against the Orthopaedic Technologists association, ruling constitutional violations must be proven with evidence, not just alleged.

What this practically means

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Executive summary

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The petitioners, members of the National Association for Orthopaedic Technologists in Kenya, filed a constitutional petition on September 17, 2021 seeking a temporary injunction against an AGM, declarations that the petitioners are bona fide members, that the Scheme of Service and a Bill were flawed and unconstitutional, injunctions restraining implementation of the Scheme of Service, orders for access to the association's records, fresh elections, restrictions on the association's bank account, and investigation of alleged criminality. They alleged that the respondents developed a scheme of service and a Bill without consulting stakeholders, misappropriated association funds through kit sales, operated an unratified draft constitution, and altered the association's name and logo without members' authority. The 1st, 2nd, 3rd, 4th and 8th respondents, through the affidavit of the Secretary General Emmanuel Mayaka Onduso, responded that the Scheme of Service was developed and approved by the Public Service Commission and Directorate of Public Service Management in consultation with the Ministry of Health, members were invited to participate, no Bill was within their mandate, an external 8-year audit was completed and reported to members, the 2013 constitution remained in force, and the officials were lawfully elected in 2018. The Court found the petitioners failed to prove the respondents issued the Scheme of Service, that the alleged Bill existed, or that funds were misappropriated, noting such claims were criminal allegations for the criminal justice process. Membership and access-to-records grievances were also found misconceived. The Court held no constitutional or Bill of Rights violation was established and dismissed the petition, with each party bearing its own costs in light of the respondents' belated participation.

Key legal issues

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01

Authority over the Scheme of Service

Holding

The petition failed because the Scheme of Service was approved by the Public Service Commission and issued by the Directorate of Public Service Management, not the respondents, and members were invited to give views

Reasoning

The Court found exhibit DBK7 showed the Association invited members' views, and the Revised Scheme of Service of September 2015 (exhibit DKB2) was approved by the Public Service Commission and issued by the Directorate of Public Service Management. The petitioners therefore failed to prove that the respondents had constitutional, statutory or other authority to develop or issue the scheme, or that they in fact issued it.

p. 6
02

Alleged introduction of a Bill of Parliament

Holding

The allegations were misconceived and moot as legislative powers vest in Parliament and the alleged Bill does not exist

Reasoning

The Court took judicial notice that legislative powers are vested in Parliament by the Constitution of Kenya 2010. The respondents stated no Bill or Act was introduced or ratified by them, and the petitioners did not rebut the case that the alleged Bill was abandoned and does not exist.

p. 6
03

Alleged misappropriation of funds

Holding

Untested criminal allegations cannot ground constitutional relief; the completed 8-year audit rendered further audit orders superfluous

Reasoning

The Court held that if the misappropriation allegations held, they amount to criminal allegations subject to the criminal justice process. The respondents' evidence of an external 8-year audit reported in 2021 and presented at the AGM of November 29 to December 2, 2023 was unrebutted.

p. 6
04

Access to records and membership rights

Holding

Both grievances failed: no request for access under the association's constitution was shown to have been denied, and no impairment of membership was proved

Reasoning

Access had to be sought under Article 24 of the association's constitution; no such request was shown. On membership, the respondents admitted the petitioners were duly recognised members with no suspension, expulsion or removal imposed, so the grievance was misconceived.

p. 6

Legal principles established

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  • A party alleging constitutional violation must establish it with evidence; allegations failing to establish authority or causation must fail

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 19, 20, 22, 27, 35, 36 and 47 (as invoked in the petition)
Jurisdiction invoked
Constitution of Kenya 2010 (constitutional petition invoking articles 19, 20, 22, 27, 35, 36 and 47 as alleged in the petition)

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, "Petition by members of the National Association for Orthopaedic Technologists in Kenya", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/269/eng@2024-02-16

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