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)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the 1st Respondent had jurisdiction to oust duly elected trade union officials by Gazette Notice
The impugned Gazette Notice decision was ultra vires and was quashed by certiorari, with prohibition restraining its implementation.
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.
Legal principles established
#- 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
#- 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.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.The 1st Respondent shall bear the costs of the Applicants.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.