Kadukha v Kenya National Private Security Workers Union (Petition E029 of 2023) [2024] KEELRC 482 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Right to be heard in disciplinary process
The Union afforded the Petitioner adequate opportunity to make written and oral representations; no violation established.
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.
Indefinite suspension and Article 47
The Court could not determine the lawfulness of the suspension because the Union's Constitution was not placed before it.
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.
Exhaustion of internal remedies
The Petitioner acted prematurely by not appealing to the National Delegates Conference under Clause 22(v).
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.
Existence of a constitutional issue
No constitutional issue warranting a constitutional petition was disclosed.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.