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ELRCDismissedPetition (Kisumu ELRC) - number not stated in judgment· [2024] KEELRC 482 (KLR)

Kadukha v Kenya National Private Security Workers Union (Petition E029 of 2023) [2024] KEELRC 482 (KLR)

Employment and Labour Relations Court
6 March 2024
733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A union member challenging his suspension lost because he skipped the union's internal appeal and failed to give the court the union's constitution.

What this practically means

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Executive summary

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The Petitioner, elected Branch Secretary (Kisumu) of the Kenya National Private Security Workers Union in February 2021, was issued a show-cause letter on 17 May 2023 containing four allegations. He responded in writing on 29 May and 12 June 2023 and attended oral hearings before the National Executive Council on 9 June and 8 September 2023. On 20 September 2023 he was informed he had been suspended for 6 months, though the letter also referred to indefinite suspension. He petitioned the Employment and Labour Relations Court at Kisumu alleging violations of his rights to dignity, fair labour practices, fair administrative action and fair hearing. The Respondent did not file a response within court-ordered timelines, filing a replying affidavit and submissions without leave. The Court found the disciplinary process was fair: particulars were supplied and the Petitioner was afforded both written and oral opportunities to be heard over more than 30 days. On the indefinite suspension claim, the Court held it could not rule on fairness or lawfulness because the Petitioner failed to place the Union's Constitution before the Court to establish the permissible suspension period. The Court further found that Clause 22(v) of the Union's Constitution provided an appeal to the National Delegates Conference which the Petitioner did not exhaust, so he moved the Court prematurely, and no constitutional issue warranted a constitutional petition. The Petition was dismissed with no order on costs.

Key legal issues

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01

Right to be heard in disciplinary process

Holding

The Union afforded the Petitioner adequate opportunity to make written and oral representations; no violation established.

Reasoning

The show-cause letter of 17 May 2023 outlined four allegations and invited a written response and oral hearing. The Petitioner responded in writing on 12 June 2023 after particulars were supplied, and attended oral hearings on 9 June 2023 and 8 September 2023, more than 30 days after the allegations were communicated. His assertion that he was not heard was not borne out by the evidence.

p. 2
02

Indefinite suspension and Article 47

Holding

The Court could not determine the lawfulness of the suspension because the Union's Constitution was not placed before it.

Reasoning

The suspension letter described the suspension as 6 months but also referred to indefinite suspension, making it vague. However, the burden was on the Petitioner to place the Union's Constitution before the Court to enable it to ascertain the suspension period provided for; having failed to do so, no finding of unfairness or unlawfulness could be made.

p. 2
03

Exhaustion of internal remedies

Holding

The Petitioner acted prematurely by not appealing to the National Delegates Conference under Clause 22(v).

Reasoning

Clause 22(v) of the Union's Constitution provides that a suspended member may appeal to the National Delegates Conference. The Petitioner did not pursue this internal avenue before filing the Petition, and the Court accordingly found that he moved the Court prematurely.

p. 2
04

Existence of a constitutional issue

Holding

No constitutional issue warranting a constitutional petition was disclosed.

Reasoning

The Court perused the Petition and found no constitutional issue justifying invocation of the Court's jurisdiction through a constitutional petition, given the adequate disciplinary process and the unexhausted internal appeal mechanism.

p. 3

Legal principles established

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  • A member alleging unfair discipline must first exhaust internal constitutional avenues of appeal before invoking the Court's jurisdiction.
  • A party alleging an unfair suspension must place the governing constitution/rules before the Court to enable assessment of the lawfulness of the suspension.

Court orders

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  1. 1.The Petition is dismissed with no order on costs.
Jurisdiction invoked
Constitutional petition invoking the Court's jurisdiction under Article 47 of the Constitution (rights to fair administrative action and fair labour practices); no specific jurisdictional article pleaded 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, "Kadukha v Kenya National Private Security Workers Union (Petition E029 of 2023) [2024] KEELRC 482 (KLR)", Case Analysis (2024). Petition (Kisumu ELRC) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/482/eng@2024-03-06

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