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ELRCAllowedNot stated in the judgment (Notice of Motion dated 21st December 2017)· [2024] KEELRC 2279 (KLR)

Republic v Cabinet Secretary Ministry of East African Community Labour and Social Protection & another; Tom Mboya Odege & 2 others (Exparte) (Judicial Review Application 36 of 2017) [2024] KEELRC 2279 (KLR)

Employment and Labour Relations Court
25 September 2024
3,872 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court ruled MPs can lawfully hold trade union offices, quashing the Cabinet Secretary's attempt to remove three union leaders.

What this practically means

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Executive summary

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Pursuant to leave granted on 15th December 2017, three trade union officials - Tom Mboya Odege (Secretary General, Union of Kenya Civil Servants), Omboko Milemba (Chairperson, KUPPET) and William Sossion (Secretary General, KNUT) - moved the Employment and Labour Relations Court by Notice of Motion seeking certiorari to quash and prohibition to restrain implementation of the Cabinet Secretary's decision in Gazette Notice Vol. CXIX-No. 184 of 13th December 2017 directing them to vacate their union offices on the ground that, as Members of Parliament, they were full-time state officers prohibited by Article 77(1) of the Constitution and section 26 of the Leadership and Integrity Act from other gainful employment. The Applicants argued that the Cabinet Secretary lacked jurisdiction, that removal of trade union officials is a matter for the ELRC and the unions' own organs, and that no proof of incompatible gainful employment or conflict of interest had been adduced. The Respondents maintained that the Applicants were full-time state officers earning from both offices, that the Gazette Notice was lawful, and that a presumption of regularity applied. The court adopted its own prior ruling in Patrick Njuguna & 7 others v Wilson Sossion & 3 others [2019] eKLR, holding that the constitutional and statutory provisions do not, of themselves, bar an MP from holding union office absent proof of conflict or incompatible gainful employment. Finding the Respondents had not proved the applicants unlawfully held two full-time jobs, the court allowed the application, quashed the Gazette Notice decision, prohibited its implementation, and awarded costs to the Applicants against the 1st Respondent.

Key legal issues

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01

Whether Members of Parliament serving as trade union officials hold two full-time jobs contrary to Article 77(1) of the Constitution and section 26 of the Leadership and Integrity Act

Holding

The Respondents failed to prove that the applicants were unlawfully holding two full time jobs; the statutory and constitutional provisions do not bar an MP from holding trade union office unless a conflict or incompatible gainful employment is proved.

Reasoning

The court adopted its own prior decision in Patrick Njuguna & 7 others v Wilson Sossion & 3 others, holding that Articles 75 and 77 and section 26 of the Leadership and Integrity Act make two separate propositions: avoidance of conflict of interest under Article 75(1)/section 26, and the bar on full-time state officers engaging in gainful employment under Article 77. It is for the party alleging to prove that the officer is full-time and that the second position constitutes gainful employment incompatible with state duties. The Respondents did not discharge that burden.

p. 9
02

Whether the 1st Respondent had jurisdiction to oust duly elected trade union officials by Gazette Notice

Holding

The impugned Gazette Notice decision was ultra vires and was quashed by certiorari, with prohibition restraining its implementation.

Reasoning

The Applicants argued that disputes concerning election of trade union officials and their removal are reserved to the Employment and Labour Relations Court under section 34 of the Labour Relations Act and section 12 of the Employment and Labour Relations Act, and that the Cabinet Secretary had no power to de-gazette or oust duly elected officials. Having found no lawful basis for the Respondents' position, the court granted both prerogative orders as prayed.

p. 9

Legal principles established

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  • The provisions of Articles 75 and 77 of the Constitution and section 26 of the Leadership and Integrity Act do not, per se, bar a Member of Parliament from holding the position of a trade union official; a bar arises only where the trade union role amounts to gainful employment incompatible with state office or creating a conflict of interest.
  • Article 260 read with sections 26(1) and (2) of the Leadership and Integrity Act alone does not bar a Member of Parliament from holding other office absent a conflict as defined.

Court orders

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  1. 1.An order of Certiorari be and is hereby issued to remove into this Court for the purposes of being quashed the decision of the 1st Respondent contained in Gazette Notice Vol. CXIX-No. 184 of 13th December 2017 ousting the Applicants from the positions as officials of their respective trade unions.
  2. 2.An order of Prohibition be and is hereby issued preventing the 1st Respondent from effecting and/or implementing the decision in Gazette Notice Vol. No 184 of 13th December 2017.
  3. 3.The 1st Respondent shall bear the costs of the Applicants.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 77(1)-(4)
  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Articles 47 and 75(2)
  • Leadership and Integrity Act (Cap 182)Sections 16(1), 26(1) and (2)
  • Labour Relations ActSections 31, 34
  • Employment and Labour Relations ActSection 12
  • Fair Administrative Actions ActNot specified

Cases cited (5)

  • John Okelo Ngafwa vs the Independent Electoral & Boundaries Commission & 2 others
    (2013) eKLR
  • Republic vs Kajiado Land Disputes Tribunal SRM'S Court Kajiado & 3 Others
    HCC 689/2001
  • Robert Nyabuto Nyabwocha v Ronald Kiprotich Tonui & Another
    Nairobi ELRC Petition No. 28 of 2016
  • Nation Media Group Ltd vs Onesmus Kilonzo
    Civil Appeal No. 108 of 2015 (2017) eKLR
  • Patrick Njuguna & 7 others v Wilson Sossion & 3 others
    [2019] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act and section 34 of the Labour Relations Act (ELRC judicial review jurisdiction over trade union officials' disputes), pursuant to leave granted on 15th December 2017

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, "Republic v Cabinet Secretary Ministry of East African Community Labour and Social Protection & another; Tom Mboya Odege & 2 others (Exparte) (Judicial Review Application 36 of 2017) [2024] KEELRC 2279 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 21st December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2279/eng@2024-09-25

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