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ELRCDismissedApplication dated 26 January 2024 in a Claim dated 22 June 2023 (Mombasa ELRC)· [2024] KEELRC 1409 (KLR)

Seafarers Union of Kenya v Ramadhan & 2 others; Registrar of Trade Unions (Interested Party) (Cause E057 of 2023) [2024] KEELRC 1409 (KLR)

Employment and Labour Relations Court
14 March 2024
MMM. MBARŨ
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, Seafarers Union of Kenya, moved the court by application dated 26 January 2024 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking maintenance of the status quo prevailing before the registrar's letter appointing a splinter group as officials of the union, a temporary injunction restraining fifteen named respondents from taking over the union's offices at Jawambe Hotel, Mombasa, and from operating its bank account at KCB Kilindini branch, and leave to amend the plaint to join the International Transport Workers Federation as an interested party. The application was supported by the affidavit of Stephen Ojiambo Owaki, who claimed to be secretary general. The respondents, through Atie Swale Ramadhan, objected that the application and underlying claim were instituted without authority, since both Hassan Kombo Ismael and Owaki were not the union's authorised representatives, and that fresh elections held on 24 June 2023 had been registered by the registrar, whose returns of 29 January 2024 named Atie Swale Ramadhan as secretary general. They also pleaded res judicata. The court held that a suit by a trade union must be lodged under the authority of the general secretary as authorised representative under Section 2 of the Labour Relations Act; the registrar's returns are the primary record of a union's status, and on those returns Owaki was not secretary general. The court found the claim not res judicata but declined all the orders sought, awarding costs in the cause.

Key legal issues

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01

Capacity to institute proceedings on behalf of a trade union

Holding

Only the general secretary or a person appointed in writing by an authorised representative may institute a claim on behalf of a trade union; Hassan Kombo Ismael and Stephen Ojiambo Owaki lacked that capacity

Reasoning

The court held that claims by trade unions are regulated under the LRA, not ordinary employment procedure. The initiator must be the general secretary or a person authorised in writing. The supporting affidavit of Owaki claiming to be secretary general was contradicted by the registrar's returns of 29 January 2024 naming Atie Swale Ramadhan, which the court treated as the primary record absent contrary evidence.

p. 4
02

Whether to restrain the respondents from taking over union offices and accounts

Holding

The injunction and status quo orders were declined because the registered officials per the registrar's returns are prima facie the current office holders and restraining them would not achieve justice pending hearing

Reasoning

Since Form Q had issued by 29 January 2024 confirming the registration of the respondents' election, Owaki was not the general secretary. An application founded on a claim improperly instituted could not sustain injunctive relief against officials appearing on the primary statutory record.

p. 4
03

Res judicata

Holding

The claim is not res judicata; Mombasa ELRC Cause No 5 of 2021 was withdrawn and ceased to exist, while Mombasa ELRC Petition No E005 of 2021 was a different suit

Reasoning

The respondents argued the matter was res judicata by reference to prior proceedings. The court distinguished the withdrawn Cause No 5 of 2021 from Petition No E005 of 2021 which proceeded to judgment on 2 February 2023, finding them different suits though connected with the parties herein.

p. 5

Legal principles established

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  • A suit commenced by a trade union must be lodged under the authority of the authorised representative (general secretary) as defined under Section 2 of the Labour Relations Act
  • The registrar's returns are the primary record of the status of a trade union's officials absent contrary evidence

Court orders

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  1. 1.Orders sought in the application dated 26 January 2024 shall not issue
  2. 2.Application declined
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure RulesOrder 40 rules 1, 2, 3 and 4; Order 1 rule 10(2)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 4
  • Labour Relations Act, 2007Section 2 (definition of authorised representative); Section 33
  • Constitution of Kenya, 2010Articles 36 and 41

Cases cited (2)

  • Mombasa ELRC Petition No E005 of 2021
  • Mombasa ELRC Cause No 5 of 2021
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016; Article 36 and 41 of the Constitution raised by respondents

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, "Seafarers Union of Kenya v Ramadhan & 2 others; Registrar of Trade Unions (Interested Party) (Cause E057 of 2023) [2024] KEELRC 1409 (KLR)", Case Analysis (2024). Application dated 26 January 2024 in a Claim dated 22 June 2023 (Mombasa ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1409/eng@2024-03-14

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