Momanyi & 8 others v Aviation and Airport Services Workers Union & 2 others; Yegon & 18 others (Intended Interested Party) [2023] KEELRC 160 (KLR)

Momanyi & 8 others v Aviation and Airport Services Workers Union & 2 others; Yegon & 18 others (Intended Interested Party) (Petition E162 of 2021) [2023] KEELRC 160 (KLR) (31 January 2023) (Ruling)

Neutral citation: [2023] KEELRC 160 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E162 of 2021

J Rika, J

January 31, 2023

Between

Charles Ndege Momanyi

1st Petitioner

Eugene Makamba

2nd Petitioner

Stephen Malongo

3rd Petitioner

John Karuha

4th Petitioner

Wanyama Shiundu

5th Petitioner

Solomon Fedha

6th Petitioner

Teresia Anyango

7th Petitioner

Fanuel Elkana Onyando

8th Petitioner

John Masinde

9th Petitioner

and

Aviation and Airport Services Workers Union

1st Respondent

Registrar of Trade Unions

2nd Respondent

Bonnie Nicholas Barasa

3rd Respondent

and

Livingstone Yegon

Intended Interested Party

Moses Malinga

Intended Interested Party

Ebu Loter

Intended Interested Party

Geoffrey Thomas

Intended Interested Party

Evans Kprop

Intended Interested Party

Mathew Mati

Intended Interested Party

Paul Kipsum

Intended Interested Party

Ibrahim Noor

Intended Interested Party

Benjamin Ruto

Intended Interested Party

Mohammed Ali

Intended Interested Party

Hilary Muhalia

Intended Interested Party

Agnes Muthoni

Intended Interested Party

Paul Ambasa

Intended Interested Party

Sydney Otieno

Intended Interested Party

Sherrington Odara

Intended Interested Party

Edwin Waburiri

Intended Interested Party

Harry Nyaga

Intended Interested Party

Joseph Kiugi

Intended Interested Party

Kenya Aviation Workers Union

Intended Interested Party

Ruling

1. This Ruling relates to 2 Applications, filed by the Intended Interested Parties.

2. The first Application is dated October 6, 2022, filed by 1st -18th Applicants. They are members of the 19th Applicant.

3. The 19th Applicant is a registered Trade Union, representing the aviation industry.

4. The Petitioners are previous members of the 1st Respondent, a Trade Union which was dissolved on July 8, 2019, vide Notice of Dissolution issued by the 2nd Respondent.

5. The Petitioners are challenging dissolution of the defunct Trade Union, named as the 1st Respondent herein. They seek Judgment as follows: -a.A declaration that procedure leading to dissolution was in violation of the Petitioners’ rights and therefore null and void.b.Declaration, that dissolution is null and void [repetitious].c.Certiorari, removing into this Court [and quash?] the Certificate of Dissolution dated July 8, 2019. d.The 2nd Respondent is compelled to reinstate the registration of the Union and its membership.

6. The 1st to 18th Applicants rely on the Affidavit of 1st Applicant, Livingstone Yegon, filed on October 6, 2022. He states that he and his colleagues are Employees working in aviation industry. They are represented by the 19th Applicant, and state that they are enjoying industrial harmony, which would be disrupted by re-registration of the defunct Union.

7. The 19th Applicant relies on the Affidavit of its Secretary- General Moses Ndiema, sworn on October 5, 2022. He states that dissolution of the 1st Respondent was voluntary. Its members and officials were taken in by the 19th Applicant. The dissolution-cum-merger, has strengthened worker representation in the aviation industry.

8. Both Applications are founded on the principle of sufficient and identifiable interest in the subject matter.

9. It was agreed by the Parties that the Applications are considered and determined on the basis of their Affidavits and Submissions.

The Court Finds: - 10. The Petition is in abuse of the process of the Court, and it is not necessary to join the Intended Interested Parties to the Petition.

11. The Notice of Dissolution issued on July 8, 2019.

12. Dissolution was a decision made by the 2nd Respondent, after the 1st Respondent voluntarily moved the 2nd Respondent for dissolution. Section 30 of the Labour Relations Act, 2007, states that any person, aggrieved by a decision of the Registrar made under the Act, may appeal to the Industrial Court [E&LRC] against the decision, within 30 days of the decision.

13. The Petitioners have not explained why they did not appeal. They filed their Petition on October 22, 2021, over 2 years after the Registrar made her decision. They cannot sidestep the Legislation under which dissolution was made, through a manipulation of the Constitution. There is a Legislation dealing with the subject matter, and resort to the Constitution is clearly in abuse of the process of the Court.

14. The dissolution of a Trade Union; Employer’s Organisation; or Federation takes effect from the date of its registration, under Section 29[3] of the Labour Relations Act. Dissolution Notice issued on July 8, 2019. The effect of dissolution can be read from Section 21, which is on the converse effect of registration. A dissolved Union ceases to be a body corporate; it does not have perpetual succession and common seal; it no longer has the capacity to sue and be sued, and to enter into contracts; and can no longer hold, purchase or otherwise acquire and dispose of movable and immovable property. It no longer exists.

15. The Petitioners cannot sustain their Petition against the 1st Respondent. It no longer has capacity to sue or be sued, in its own name. It is no longer a corporate body. It is no longer a juristic person, capable of suing or being sued. The 1st Respondent died on July 8, 2019. The Petition as a whole is in abuse of the process of the Court.

It is Ordered: -a.The 2 Applications by the Intended Interested Parties are declined.b.The Petition is declined.c.No order on the costs.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 31ST DAY OF JANUARY 2023. JAMES RIKAJUDGE