Union of Kenya Civil Servants, Tom Mboya Odege , Noah Rotich, Esther Nyakundi , David Kiganda , Lawrence Nyaguti Ochieng, Sofi Kachwai & Charles John Atieli v Ruth Baraza, John Nzau, Registrar of Trade Unions, Commissioner for Labour, Union of Kenya Civil Servants, Tom Mboya Odege, Justus Kinyua Mugu, Jerry Ole Kina & Harisson O. Kokebe; Registrar of Trade Unions (Interested Party) [2021] KEELRC 1053 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
(Before Hon. Lady Justice Maureen Onyango)
PETITION NO. E114 OF 2021
UNION OF KENYA CIVIL SERVANTS.................................1ST PETITIONER
TOM MBOYA ODEGE............................................................2ND PETITIONER
VERSUS
RUTH BARAZA......................................................................1ST RESPONDENT
JOHN NZAU...........................................................................2ND RESPONDENT
CONSOLIDATED WITH
PETITION NO. E100 OF 2021
UNION OF KENYA CIVIL SERVANTS.......................................PETITIONER
VERSUS
REGISTRAR OF TRADE UNIONS......................................1ST RESPONDENT
COMMISSIONER FOR LABOUR.......................................2ND RESPONDENT
CONSOLIDATED WITH
PETITION NO. E098 OF 2021
NOAH ROTICH................................................................................PETITIONER
VERSUS
UNION OF KENYA CIVIL SERVANTS...............................1ST RESPONDENT
TOM MBOYA ODEGE..........................................................2ND RESPONDENT
REGISTRAR OF TRADE UNIONS....................................3RD RESPONDENT
CONSOLIDATED WITH
CAUSE NO. E441 OF 2021
LAWRENCE NYAGUTI OCHIENG.........................................1ST CLAIMANT
ERIC ABONG’O.........................................................................2ND CLAIMANT
VERSUS
UNION OF KENYA CIVIL SERVANTS..............................1ST RESPONDENT
JUSTUS KINYUA MUGU......1ST APPLICANT/INTENDED RESPONDENT
JERRY OLE KINA................2ND APPLICANT/INTENDED RESPONDENT
HARISSON O. KOKEBE.......3RD APPLICANT/INTENDED RESPONDENT
CONSOLIDATED WITH
NAKURU ELRC PETITION NO. E019 OF 2021
ESTHER NYAKUNDI..............................................................1ST PETITIONER
DAVID KIGANDA...................................................................2ND PETITIONER
VERSUS
UNION OF KENYA CIVIL SERVANTS...............................1ST RESPONDENT
JUSTUS MUGO.......................................................................2ND RESPONDENT
JERRY OLE KINA.................................................................3RD RESPONDENT
AND
REGISTRAR OF TRADE UNIONS...............................INTERESTED PARTY
CONSOLIDATED WITH
NAKURU ELRC CAUSE NO. 44 OF 2021
SOFI KACHWAI........................................................................1ST PETITIONER
CHARLES JOHN ATIELI........................................................2ND PETITIONER
VERSUS
TOM MBOYA ODEGE...........................................................1ST RESPONDENT
UNION OF KENYA CIVIL SERVANTS...............................2ND RESPONDENT
JUDGMENT
1. The judgment is in respect of six suits being: -
Petition No. E114 of 2021 –
Petition No. E100 of 2021
Petition No. E098 of 2021
Cause No. E441 of 2021
Nakuru ELRC Petition No. E019 of 2021
Nakuru ELRC Cause No. E44 of 2021
2. In Petition No. E114 of 2021, the Petitioners seeks the following prayers –
(a) A declaration that notices issued by the 1st and 2nd Respondents on 9th and 13th July, 2021 are illegal, unlawful and ultra vires;
(b) A declaration that the National Executive Board meetingsand the National Administrative Council meeting held on 13th July 2021 and any other meeting before fresh elections of National Officials fall below the requisite quorum;
(c) An order suspending the National Executive Board meetings and National Administrative Council meetings until the elections of national elections;
(d) A declaration that Justus Mugo, Jerry Ole Kina and Ruth Barasa are not eligible to vote in any organ of the 1st Petitioner;
(e) A declaration that the attempt by the 1st Respondent and the 2nd Respondent to usurp the powers of the 2nd Petitioner is illegal, unlawful, unwarranted, irregular and ultra vires;
(f) An order be and is hereby issued restraining the interested party from making any alteration to the registered leadership of the unions position of the 2nd Petitioner pending elections of the 1st Respondents National Executive Board to be held on 5th August 2021 or any other date prescribed by the 2nd Petitioner;
(g) The cost of this Petition.
3. In Petition No. E100 of 2021, the Petitioner seeks the following prayers –
(a) An order be issued restraining the Respondents from interfering in the operations of the Petitioner;
(b) An order be issued declaring that the circular by the 1st Respondent declaring that all union elections should be conducted by 30th June, 2021 as unconstitutional, illegal, null and void with respect to the Petitioner;
(c) An order be issued restraining the Respondents from interfering in the operations of the Petitioner in handpicking candidates to vie for election, setting down dates for elections and interpreting the court orders in a self-serving manner;
(d) The Respondents be restrained from removing the elected officials from office before their term ends;
(e) The Respondents be restrained from interfering with the finances of the Petitioner;
(f) The Respondents be restrained from removing and imposing candidates for any position;
(g) A declaration that the 1st and 2nd Respondents are in contravention of Chapter 6 of the Constitution and are forthwith not fit to hold public office of any kind anywhere in the Republic of Kenya;
(h) An award of general damages against the Respondentsfor aggravated contravention of the rights of the Petitioner;
(i) The cost of this Application be borne by the Respondents;
(j) Any other or further relief that this Honourable Court considers appropriate and just to grant.
4. Petition No. E100 of 2021 was withdrawn by notice of withdrawal dated 26th July 2021.
5. In Petition No. E098 of 2021, the Petitioner seeks the following prayers –
(a) Spent;
(b) That a declaration be and is hereby issued that the actions of the 2nd Respondent is in violation of the Union’s constitution, the Labour Relations Act and the Constitution of the Republic of Kenya;
(c) That the honourable court be pleased to extend the notice for elections issued by the registrar of trade unions under circular number ML & SP/TU/ELECTION/2021 of 25th September, 2021 for a period of 60 days to pave way for preparation of fresh elections by the 1st Respondent;
(d) That a declaration be and is hereby issued that the notice for elections issued by the secretary general Ref No. UKCS/REG/TRD/VOL.1/(297) on 25th June, 2021 is null and void and ultra vires the Union’s constitution and the law and that the same be and is hereby struck out and/or vacated;
(e) That a conservatory order in the nature of injunction be and is hereby issued suspending the 1st respondent’s national elections scheduled for 5th August, 2021 until such a time the national executive board of the 1st Respondent shall as per the requirement of the law set a date for holding the national elections, set venue for holding the national elections and the agenda for the National Quinquennial Delegates Conference and verify the list of delegates in compliance with Articles 15 of the Union’s constitution;
(f) The costs of the petition and interest thereof be awarded to the petitioners;
(g) That the court to issue other orders as it deems fit in the circumstance.
6. In Cause No. E441 of 2021, the Claimants seeks the following prayers –
(a) Declaration that the delegate’s distribution numbers per branch for the scheduled elections of the Union of Kenya Civil Servants national officials to be held on 22nd June 2021 be the same as the delegate distribution numbers used during the elections of National officials on 27th October 2016;
(b) The Respondents bears the costs of this Claim.
7. In Nakuru ELRC Petition No. E019 of 2021, the Petitioners seeks the following prayers –
(a) A declaration that 2nd and 3rd Respondents are not eligible to contest for the position of Secretary General of the 1st Respondent when they have not met the eligibility criteria in accordance with Article 7(5) of the Union; Constitution as read with circular number 197 of 2021 issued by the 1st Respondent.
(b) An Order barring the 1st Respondent from presenting the names of the 2nd and 3rd Respondents as candidates for national positions during the national elections slated for 5th August, 2021 or any subsequent elections for national officials without meeting the criteria set out for non-members of the union under article 7(5) of the Union’s constitution as read with circular number 197 of 2021.
(c) An Order restraining the interested party from imposing the 2nd and 3rd Respondents as contestants in the 1st Respondent’s election of national officials slated for 5th August, 2021.
(d) Costs.
8. Nakuru ELRC Petition No. E019 of 2021 was transferred to this Court for hearing with the other suits filed in Nairobi by order of Wasilwa J. made on 27th July 2021 so that it could be heard and disposed of together with the petitions and claim filed in this Court.
9. I also have Nakuru ELRC Cause No. E44 of 2021 which was added to the bunch of files as it seeks orders similar to those under consideration being prayers that –
(i) Spent.
(ii) The court be pleased to issue an interlocutory injunction restraining/stopping the Respondents from conducting the elections of the national officials of the 2nd Respondent scheduled for the 5th of August, 2021 pending the hearing and determination of this Application.
(iii) The court be pleased to issue an interlocutory injunction restraining/stopping the Respondents from conducting the elections of the national officials of the 2nd Respondent scheduled for the 5th of August, 2021 pending the hearing and determination of this suit.
(iv) The Court be pleased to issues and order compelling the Respondents to include the names of the Claimants as Delegates representing Trans-Nzoia branch for the purposes of voting in the National Delegates Conference.
(v) The court be pleased to issue and order compelling the Respondents to hold the election of the national officials at the venue, date and manner suggested by the National Executive Board in compliance with the union’s Constitution.
(vi) That the Respondents be and are hereby compelled to publish the names of the National delegates at least two weeks before the election date and submit the same for verification before the registrar of trade union as per the Judgment of Hon. Madzayo.
(vii) The cost of this application be borne by the Respondents.
10. From the prayers in the claims and petitions, the common denominator is the elections of the Union of Kenya Civil Servants.
11. By directions made on 29th July 2021 that parties file submissions in respect of the issues in all the suits and that the parties highlight the submissions on 3rd August 2021, all the parties filed and exchanged submissions which were highlighted on 3rd August 2021.
12. Mr. Jonah Kirwa instructed by Mwakio Kirwa and Company Advocates appeared for Ruth Barasa, Justus Kinyua Mugo, John Nzau and Jerry Olekina; Mr. Nyamweya and Mr. Mamboleo instructed by Nyamweya Mamboleo Advocates appeared for Tom Odege and the Union of Kenya Civil Servants, Mr. Julius Juma instructed by Julius Juma and Company Advocates represented Esther Nyakundi and David Kiganda, Petitioners in Nakuru ELRC Petition No. E019 of 2021.
13. Mr. Kioko appeared for the Registrar of Trade Unions, the Interested Party in Petition E114 of 2021, Nakuru Petition E019 of 2021, 1st Respondent in Petition E100 of 2021. Lawrence Nyaguti Ochieng and Eric Abong’o, 1st and 2nd Claimants in Cause E441 of 2021 appeared in person.
Determination
14. I have considered the pleadings and written submissions filed by all the parties. I have further considered the oral submissions made in Court by all the parties on 29th July and 3rd August 2021. The issues arising for determination are the following –
(i) Validity of the notice of elections issued by the Secretary General, Mr. Tom Odege;
(ii) Whether Justus Mugo and Jerry Olekina are qualified to vie for the position of Secretary General in the forthcoming union’s national elections
(iii) List of delegates;
(iv) Convening of NEB and NAC;
(v) Date of elections
(vi) Eligibility of Sofi Kichwai and Charles John Atieli to be delegates for Trans-Nzoia Branch.
Notice of elections
15. It was submitted by Mr. Kirwa that the National Executive Board of the Union met on 11th May 2021 and passed a resolution scheduling National Quinquennial Delegates Conference (NQDC) for 22nd June 2021 at Kasarani Sports Complex. That the National Executive Board (NEB) further discussed and adopted the Agenda for the NQDC. That the elections of 22nd June 2021 aborted for reasons stated in the minutes of the said meeting being that the Secretary General failed to seek extension of the Registrar’s circular of 25th September 2020 as directed by the National Administrative Council (NAC) and NEB on 23rd June 2021 and in violation of the Constitution. That he unilaterally convened another NQDC for 5th August 2021 without sanction of any union organ. That this was ultra vires. Mr. Kirwa submitted that the Secretary General usurped the authority of the NEB as directed by the NQDC on 22nd June 2021 by issuing the elections notice on 25th June 2021. That the said notice is therefore null and void.
16. It is further the submission of Mr. Kirwa that the Secretary General on 30th June 2021 issued a General Circular No. 202 indicating that the venue of the elections was Tom Mboya Labour College in Kisumu, which was not sanctioned by any union organ as the venue approved by NEB on 22nd June 2021, was Kasarani Sports Complex, Nairobi. Counsel submitted that Tom Mboya Labour College was outrightly rejected for being the home to the Secretary General.
17. For the Secretary General and Union, Mr. Nyamweya submitted that the Secretary General does not require approval to issue notice of NQDC. That only the Annual Delegates Conference (ADC) and Special Delegates Conference (SDC) require authority of NAC and NEB.
18. Mr. Mamboleo appearing with Mr. Nyamweya for the Secretary General and the Union further submitted that there is no quorum for NEB following the retirement of 7 members and the election of 5 members of NEB as branch officials. That it is only the venue of the NQDC that is determined by the NEB.
19. Mr. Mamboleo submitted that the quorum for meetings is provided for under Article 20 as two thirds of the members entitled to attend and vote while the threshold for decisions are provided for at Article 19 to be a simple majority of members present and entitled to vote.
20. Mr. Lawrence Nyaguti Ochieng on his own behalf and on behalf of his co-claimant Mr. Eric Abong’o submitted that retirees are not eligible to vote as they do not qualify to form a quorum. That the NEB is redundant and cannot make any decisions that are binding until elections are held as it does not have a quorum following retirement of 7 members and election of 5 members as branch officers.
21. Mr. Kioko for the Registrar of Trade Unions submitted that venue and date of elections are decided by NEB, that it has not been demonstrated that the NEB was involved in fixing the date of the elections.
22. Notice of elections is provided for at Article 15 of the Union’s constitution as follows –
Article 15: Composition and Functions of the National Organs of the Union
1. National Delegates’ Conference
There shall be three types of National Delegates’ Conferences, namely-
(i) The National Quinquennial Delegates' Conference;
(ii) The National Annual Delegates’ Conference.
(iii) The Special National Delegates' Conference;
1. 1 The National Quinquennial Delegates' Conference
(a) The National Quinquennial Delegates' Conference shall be the supreme organ of the Union and shall determine any issue brought before it and its decision on any question concerning the Union shall be final.
(b) The elections of the Union's National officials shall be held at the National Quinquennial Delegates’ Conference.
(c) The National Quinquennial Delegates' Conference shall be held at a time, being, not later than five years since the previous National Quinquennial Delegates' Conference and a place recommended by the National Executive Board,
(d) Written notices convening the National Delegates' Conference shall be sent out by the Secretary General to all Branches/Chapters of the Union, at least six weeks before the date of time Conference.
(e) The National Special Delegates' Conference or Delegates'
Conference shall consist of—
(i) Fourteen (14) National Officials,
(ii) Three (3) Trustees of the Union and;
(iii) The number delegates from the Branches/
Chapters apportioned and identified as per sub-article (2) of this Article.
(2) Delegations representing Branches to the National Delegates' Conferences shall be as follows —
BRANCH DELEGATIONS TO THE NATIONAL DELEGATES CONFERENCE BASED ON NUMBER OF MEMBERS
MEMBERSHIP NUMBER OF DELEGATES DESIGNATION OF DELEGATE TO ATTEND
300 – 500 1 Branch Secretary
501 – 1,000 2 Branch Chairman
1,001 – 1,500 3 Branch Treasurer
1,501 – 2,000 4 Branch Women Leader
2,001 – 2,500 5 Assistant Branch Secretary
2,500 and above 6 Vice Chairman
The agenda of the National Quinquennial Delegates’ Conference shall be –
(a) the holding elections of the National officials;
(b) receiving and considering any reports including the financial reports, budget estimates and auditor's reports;
(c) discussing and adopting or otherwise dealing with the Union policy outlining the direction of the Union programmes and activities;
(d) discussing and giving of directions on any matter referred to it by the Advisory Council;
(e) considering and dealing with reports of the National Officials namely: the National Chair person, the Secretary General and the National Treasurer;
(f) Conducting any other business;
The National Executive Board shall prepare the agenda for tire Delegates Conference and the same shall be sent to the delegates by the Secretary General not later than three weeks before the Delegates Conference.
The Quorum for National, Quinquennial and Special Delegates’ Conferences shall be two-thirds of the members entitled to attend and vote thereat.
23. From the foregoing, it is clear that the notice for NQDC is issued by the Secretary General as per Article 15. 1.1. 1(d) of the constitution at page 28 thereof. The quorum is set out at Article 15. 1.1. 2 at page 29. The role of the NEB is to prepare the agenda for the delegates’ conference which is to be sent to the delegates by the Secretary General. The NEB also decides on the venue of the NQDC. The date of the meeting is stated to be at a time not later than 5 year since the previous.
24. Only the National Annual Delegates Conference and the Special Delegates Conference are convened by the NEB as provided at Article 15. 1.2(a) and 15. 1.3(d) of the Union’s constitution which provide as follows –
15. 1.2 The National Annual Delegates’ Conference
(a) The National Annual Delegates Conference shall be convened annually for not less than two (2) days in the months of June or August, at such date and place as may be fixed by the National Executive Board.
15. 1.3(d)A Special National Delegates Conference shall be convened by the Secretary General, as shall be directed by the National Executive Board, and by giving a three-week notice in writing to each Branch Chapter of the Union
25. The notice issued by the Secretary General having been in conformity with Article 15. 1.1. (c), and the resolutions of the NEB meeting of 11th May 29021,, I find that the notice of the NQDC sent out by the Secretary General was in compliance with the Union’s constitution.
26. With respect to the venue, the minutes of the NEB meeting held on 11th May 2021 resolved as follows at Minute 05/05/2021 at paragraph 2 as follows –
“Minute 5/05/2021: National Elections Date
Members agreed that the Election date be moved from 14th June, 2021 to 22nd June, 2021 in order to abide in (sic) the Union’s constitution.
This was proposed by Confat Ademba and seconded by Judy Wangari.
Election Venue
This was subjected to secret ballot voting with thirty (30) Board members present. The board members hence made recommendations on the basis of preference to the three venues as follows:
Kasarani Sports Complex Nairobi – 1st Priority recommendation
Bandari College in Mombasa – 2nd Priority
Tom Mboya Labour College – 3rd Priority”
27. In his affidavit sworn on 2nd August 2021, the Secretary General attached a letter dated 23rd July 2021 from Sports Kenya notifying the Secretary General that Moi International Sports Centre, Kasarani was not available on the material date due to World Under 20 Championship (WU20). He further attached email correspondence exchanged with Bandari College and specifically the email dated 26th July 2021 in which Bandari College states that it has no capacity to host a conference of 160 people, specifically during the sensitive times of COVID-19. That they also did not have parking arrangements for so many persons. He further attached correspondence from Tom Mboya Labour College giving a pro forma invoice for the NQDC.
28. It is therefore not true that the NEB rejected Tom Mboya Labour College or that the notice for the NQDC was not issued in accordance with the constitution.
Eligibility to vie for Positron of Secretary General
29. It was the submission of Mr. Kirwa that Section 31(1) of the Labour Relations Act and Section 7(5) of the Union’s constitution provide that a person who has been employed in the public sector qualifies to be elected as a Secretary General of the Union. He relied on the decisions in Nairobi Petition No. 121 of 2018, Nakuru Petition No. 15 of 2018 and Nairobi Petition No. 178 of 2019. He submitted that in the said decisions, the Court held that once elected as an official one served for the duration of the office. That Justus Mugo was elected as Treasurer on 27th October 2016. That in the circumstances his term of office comes to an end on 27th October 2021. That this applied to all persons holding office of National Administrative Council (NAC) and National Executive Board (NEB).
30. He submitted that Article 11 of the Union’s constitution further provided that elected officers hold office for a term of 5 years.
31. Mr. Mamboleo on the other hand submitted that the Labour Relations Act allows persons from outside the Union to contest the position of Secretary General. That there is need for the Union to provide who can vote, which was done at the National Annual Delegates Conference of 2018 where a resolution was passed under Minute 3. 09. 2018 to the effect that a person who wants to become a Secretary General must qualify. That to qualify such a person must pay a non-refundable fee of Kshs.3,000,000.
32. He further submitted that it is a requirement of the Labour Relations Act that one should not have been convicted of a criminal offence. That the only way to confirm this is to produce a Certificate of Good Conduct which neither Mr. Jerry Ole Kina nor Mr. Mugo had produced.
33. Mr. Juma submitted that the cases cited by Mr. Kirwa do not relate to the matters before the Court. That the cases decided the issue whether an official elected while a member and thereafter retires should be allowed to serve for a full term.
34. That the situation herein is whether somebody who is not a member has a right to be elected.
35. He submitted that Jerry Ole Kina does not qualify for two reasons. That first, he is currently on suspension. That he challenged his suspension before this Court an on 17th July 2021 and the Court upheld the suspension.
36. Mr. Juma further submitted that Article 12 of the Union’s constitution states that he can challenge his suspension. That has not filed any appeal.
37. That the second reason is that both Mr. Ole Kina and Mr. Mugo are not members of the Union. That Article 7. 4 provides that a non-member cannot contest the positon of Secretary General.
38. He submits that for a non-member, there is a blank cheque. That this is a lacuna which Article 27 of the constitution of the Union allows the Advisory Council to resolve by way of resolution. That such resolution is only to take effect once adopted by the National Delegates Conference (NDC).
39. He submits that the NDC made resolutions at which both Mr. Mugo and Mr. Ole Kina attended. That it was in fact Mr. Ole Kina who moved the motion.
40. He submits that since the resolution was adopted by NDC it has not been challenged.
41. He submits that Article 4. 3 of the Union’s constitution provides that members shall be bound by decisions of the Union organs. That for this reason the two are bound by the decision of NDC.
42. Further, that Article 15. 1.2(b) states that the NDC is the supreme authority of the Union.
43. Mr. Juma further submitted that another resolution made was that a non-member seeking office must demonstrate that he has not been convicted of a criminal offence. That this is also provided for in the Labour Relations Act. He submits that both Mr. Ole Kina and Mr. Mugo did not comply by production of a certificate of good conduct.
44. He concluded that the two do not qualify.
45. Mr. Nyaguti submitted that both Mr. Ole Kina and Mr. Mugo did not meet qualifications under Article 7. 5 of the Union’s constitution and Section 31(5) of the Labour Relations Act. He submitted that both have not proved that they have not been convicted of criminal offences.
46. Mr. Kioko for the Interested Party submitted that Article 1 of the Union’s constitution reaffirms the supremacy of the Union’s constitution and that it supersedes all resolutions of the Union. He submitted that Section 34 of the Labour Relations Act is clear on eligibility to vie for the positon of Secretary General. He urged that the NEB should make resolutions on eligibility.
47. He submitted that the requirement that non-members pay Kshs.3 million is discriminatory.
48. Section 31(1) and (4) of the Labour Relations Act provides for officials of trade unions as follows –
31. Officials
(1) The officials of a trade union or employers’ organisation shall be persons who are, or have been, engaged or employed in the sector for which the trade union or employers’ organisation is registered.
(2) No person shall be an official of more than one trade union or employer’s organisation.
(3) An official of a trade union may also be an official of a federation of trade unions to which the trade union is affiliated.
(4) Notwithstanding the provisions of subsection (1) —
(a) the general secretary of a trade union or the chief executive or association secretary of an employers’ organisation may be a person not engaged or employed in the sector concerned;
(b) a person may be an official of more than one employer’s organisation; and
(c) the Registrar may, on application by a trade union or employers’ organisation, permit any other office to be filled by a person not engaged or employed in the sector concerned.
(5) No person who has been convicted of a criminal offence involving fraud or dishonesty shall be an official of a trade union or employer’s organisation.
49. Section 33 provides for voting members as follows –
33. Voting members of trade union
No person shall be a voting member of—
(a) a trade union unless that person is employed in the sector for which the trade union is registered;
(b) an employers’ organisation unless that person has a physical address or an office in Kenya; or
(c) a registered trade union or employer’s organisation if that person’s subscriptions are more than thirteen weeks in arrears.
50. Section 34 provides for election officials as follows –
34. Election of officials
(1) The election of officials of a trade union, employers’ organisation or federation shall be conducted in accordance with their registered constitutions.
(2) The constitution of a trade union, employers’ organisation or federation shall—
(a) not contain a provision that discriminates unfairly between incumbents and other candidates in elections; and
(b) provide for the election, by secret ballot, of all officials of a trade union at least once every five years.
(3) Notice of the election of officials under this section shall be given to the Registrar in the prescribed form within fourteen days of the completion of the election.
(4) Disputes arising from, or conNACted directly or indirectly to, elections held under this section may be referred to the Industrial Court.
(5) The Registrar may issue directions to a trade union, employers’ organisation or federation to ensure that elections are conducted in accordance with this section and their respective constitutions.
51. It is not in dispute that both Mr. Jerry Ole Kina and Mr. Mugo are retired. They therefore do not qualify to vote under Section 33(a) of the Labour Relations Act. They have both applied to vie for the position of Secretary General under Section 31(4) of the Labour Relations Act which provides that a General Secretary of a trade union may be a person not engaged or employed in the sector concerned.
52. The said Mr. Ole Kina and Mr. Mugo have not denied that they have not submitted proof required under Section 31(5) to the effect that they have not been convicted of a criminal offence involving fraud or dishonesty.
53. Besides the provisions of the Act, Articles 7(4) and (5) of the Union’s constitution provide as follows –
(4) A person shall not be eligible for election as a National Official if that person
(a) is not a public servant;
(b) is not a member of the Union;
(c) is not proficient in English and Kiswahili languages;
(d) owes the Union any amounts being arrears of unpaid subscriptions or owes the union any other amount which is due to the Union and remains unpaid;
(e) has not been a member of the Union for at least the last two years immediately preceding the date of the election despite having been employed in the Public Service for two or more years, and was otherwise eligible for membership during that time;
(f) has not been in employment in the public service for at least the last six months,
(5) Notwithstanding sub article (4) of this Article:-
(a) a person not employed in the Kenya Public Service shall be eligible to contest for election to the office of the Secretary-General;
(b) any other office may be contested and filled by a non-member of the Union provided that the permission of the Registrar of Trade Unions is obtained in accordance with the provisions of the Labour Relations Act, No. 14 of 2007, Laws of Kenya.”
54. In Minute 03/09/2018 of the minutes of the Annual Delegates Conference held on 6th and 7th September 2018, a resolution was passed as follows –
“Minute 03/09/2018 — Interpretation under Article 29 and Amendments to the Constitution
The agenda on the proposed amendments to the Union’s constitution was therefore delivered by the 1st Deputy Secretary General as is attached. It was noted that Article 7(5) of Union’s constitution was silent on the eligibility criteria and therefore needed to be expanded.
Members agreed that an interpretation under article 29 does not need a constitutional amendment once approved by the Delegates Conference.
It was therefore agreed that any non-Member vying for the Position of Secretary General under article 7(5) of the Union’s constitution must meet the following requirements:
1. Pay a non-refundable fees of Kshs.3,000,000
2. Comply with other requirements of the Labour Relations Act.
3. When elected, pay monthly union subscription.
All the proposals were adopted including the correction in Appendix 6 where the term Central Governing Council shall be replaced by the words Advisory Council. (See annexed presentation). Other amendments to the | Constitution are to be made pursuant to Article 30. ”
55. Article 15. 1.2 of the constitution of the union provides for the functions of the Annual Delegates Conference as follows –
“1. 2 The National Annual Delegates’ Conference
(a) The National Annual Delegates Conference shall be convened annually for not less than two (2) days in the months of June or August, at such date and place as may be fixed by the National Executive Board
(b) The Annual Delegates Conference shall be the Supreme Authority of the Union and its decisions shall be final and binding on all members
(c) Notice regarding the National Annual Delegates Conference shall be issued, by the Secretary General upon consultation with the National Executive Board, at least six (6) weeks before the Conference
(d) The functions of the National Annual Delegates Conference shall be to:
(i) determine the broad basic policy programme for future activities of the Union
(ii) delegate powers to the National Executive Board for the purpose of setting up specialized Departments and other advisory bodies at the Union Secretariat to execute the aims and objectives of the Union
(iii) consider and approve proposals, reports and audited accounts presented by the National Officials, and Trustees on behalf of the National Executive Board”
56. From the minutes, it is clear that Mr. Ole Kina, who is still the registered 1st Deputy Secretary General of the Union was the mover of the motion.
57. Article 15. 1.2 clearly provides that the Annual Delegates Conference is the supreme organ of the Union whose decisions are final. There is no application to this Court to set aside any resolution of the ADC meeting held on 7th and 8th September 2018 and specifically resolution no. 03/09/2018 that has been brought to the attention of this Court.
58. The averment by the Registrar of Trade Unions at this juncture that the resolution is discriminatory is coming too late, being almost 3 years after the resolution was passed and having not raised the same with the Union before.
59. Besides the foregoing, Sections 31(4)(a) and 34(2) of the Labour Relations Act do not refer to retired Union officials who are still in office or to persons who were members but whose membership has lapsed.
60. Section 31(4)(a) refers to an outsider who is qualified to be a member but for the provision of Section 31(1) to the effect that the person is not engaged or has not been engaged in the industry. It does not refer to a person who is in the industry but is no longer qualified to be a member of the Union.
61. Subsection 31(4) also refers to relevant sector. The Section does not refer to a person who has been engaged in the sector but has ceased or become disqualified from being a member.
62. As submitted by Mr. Juma, that Section is not intended to givea persons who have been officials but have ceased to be eligible to become officials an advantage over eligible members of the Union by giving them a new lease of life. It is not intended to recycle members and or officials who according to the Union’s constitution are past their “sell by date”. The Section, in my understanding, is intended to inject into a trade union expertise which the Union needs but does not have from within, from persons who are otherwise qualified for membership and to vote but are only locked out or ineligible by virtue of the fact that they do not come from the relevant sector.
63. It is further my view that the requirement by the Union for such a person to pay for their admission into membership is not in conflict with Section 34(2)(a) of the Act. In my understanding Section 34(2)(a) does not refer to an outsider being admitted to vie for the positon of Secretary General, but for an official who is in office creating discriminatory barriers against other members who may wish to vie for office. The Section specifically refers to “incumbents and other candidates in elections”.
64. The decisions in Nairobi Petition No. 121 of 2018 consolidated with Nakuru Petition No. 15 of 2018 between Justus Kinyua Mugo v Union of Kenya Civil Servants & Anotheras well as Petition No. 178 of 2019 between Zachary Binyanya & 3 Others v Union of Kenya Civil Servants & 2 Others were in respect of a Union official who has been elected into office but who becomes ineligible while in office, as opposed to the present situation which is whether a person who is no longer eligible to become a member of a trade union can use Sections 31(1) and 34(2)(a) to re-enter the Union membership and become eligible for election as a Union official.
65. In my view, it is the foregoing reason that bar Mr. Ole Kina and Mr. Mugo from vying for the position of Secretary General of the Union of Kenya Civil Servants, I accordingly find and declare that Mr. Jerry Ole Kina and Mr. Justus Kinyua are not eligible to vie for the position of Secretary General of the Union of Kenya Civil Servants.
List of Delegates
66. It was the submission of Mr. Kirwa that the issue of delegates was discussed at the NEB meeting of 11th May 2021 which resolved that IPPD of April 2021 will be used to derive delegates, pursuant to Article 15. 1.1(2). Counsel referred the Court to the letter dated 2nd March 2021 from the Secretary General to the Principal Secretary Ministry of Gender Affairs calling for IPPD, and the consent adopted by the Court in Cause No. E441 of 2021.
67. In the written submissions filed by Mwakio Kirwa and Company Advocates, it is submitted that the delegates’ list issued by the Secretary General on 30th June 2021 through General Circular No. 202 was not approved by NEB and was not verified against April 2021 IPPD.
68. It is further the submission of Mr. Kirwa that the names of Margaret Kyule, the Treasurer Mombasa Branch, Julia Kichobi, Treasurer Kirinyaga Branch and Isaac Muge, Chairman, Baringo Branch were rejected because they opposed the Secretary General. No proof of these assertions were provided to the Court.
69. Further, Mr. Kirwa submitted that the Secretary General ignored a Court order in Nakuru ELRC Petition No. E016 of 2021 in which the Court ordered that Sofi Kachwai and Charles Atieli were omitted from the delegates list and instead the names of Mary Langat and Richard Ambuyo included in the delegates list for Trans Nzoia Branch.
70. Mr. Nyamweya submitted that the delegates list is derived under Article 15. 1.1(2) by giving weight to membership of each branch. That the Roll of Members is maintained at the Union office in the custody of the Secretary General who is the custodian, and can be inspected by any member as provided under Article 25 of the Union’s constitution. That none of the Respondents has notified the Secretary General of the intention to inspect the Roll of Members. That IPPD is not provided for in the Union’s constitution and cannot be the basis for membership.
71. It was further Mr. Nyamweya’s submission that the Registrar of Trade Union’s submission that the list of delegates be submitted to her office for verification has no basis in the Union’s constitution. That the Registrar relies on Cause No. 1104 of 2011 while the Union’s constitution was amended in 2015.
72. Mr. Nyaguti submitted that the delegates list was prepared using the strength of membership, not IPPD. He reiterated the submissions of Mr. Nyamweya to the effect that those contesting the delegates’ list have not requested to inspect the register. He submitted that the reason the Registrar seeks to verify the delegates’ list is to interfere with leadership of the Union.
73. Mr. Kioko submitted that Section 33 of the Labour Relations Act provides for voting members of a trade union to the effect that members whose subscriptions are in arears for over 13 weeks are locked out as they are dormant members. That a delegate can only be one who can demonstrate that they are not in arears.
74. Mr. Kioko further submitted that the Secretary General requested for IPPD list from the Principal Secretary by letter dated 2nd March 2021, with a view to providing a list of union delegates. He submitted that the Court has powers to direct the NEB to submit a list to the Registrar of Trade Unions to verify so that parties are satisfied that they are playing on a level field.
75. Article 15. 1.1(2) provides that delegates representing branches to the National Delegates Conference is based on number of members. Member is defined at Article 1B (Interpretation) to mean a member of the Union entered in the Roll of Members. Branch is defined as a Branch established under Article 18.
76. A voting member is on the other hand provided for under Section 33 of the Labour Relations Act to be one who is not inarrears of subscriptions for more than 13 weeks.
77. The difference in the arguments by Mr. Kirwa and the Registrar of Trade Unions and those of Mr. Nyaguti, Nyamweya and Juma appears to be a mix up of the definition of a “voting member” as opposed to a “member”.
78. It is only a delegate who must be eligible to vote at the time of elections in terms of Section 33 of the Act, as voting in the Union is through delegates. On the other hand, representation by delegates is based on the number of members in the Roll of Members kept in the Unions’ office.
79. The list presented to the Court for adoption in Cause E441 of 2021 contains both the number of paid up members as well as the number of total membership per branch. I have examined the two lists, that contained in the documents of the Registrar of Trade Unions and in the affidavit of Justus Kinyua Mugo sworn on 20th June 2021 and note that the number of paid up members per county is the same with lsight vairiatons, as that in the consent adpted by the Corut. However, no breakdown of paid up members per branch has been given in the list at Appendix JKM3 which Mr. Kirwa relies on. The consent dated 9th June 2021 adopted by the Court contains a list of paid up and a separate list of total registered members per county, per branch and delegates per branch. Since delegates are based on membership per branch, which is not stated in the list at JKM3, the number of delegates in the list is understated as it omits number of total membership per branch.
80. The list relied upon by Mr. Kirwa is therefore incomplete as it does not contain a breakdown of members per branch. It also does not contain total number of registered members. The constitution of the Union provides for “Branch Delegations to the National Delegates Conference based on number of members per branch”.
81. I therefore find the number of delegates as given in the list adopted in Court to be the one that conforms with the table at Article 15. 1.1(2) and therefore the correct list of delegates.
82. Section 34 of the Labour Relations Act requires that election of officials of trade unions are conducted in accordance with their registered constitutions. The IPPD is not provided for in the Union’s constitution and there is no basis for adopting the same to derive delegates. The IPPD list is only relevant for confirmation that all delegates are paid up members at the time of voting in accordance with Section 33 of the Labour Relations Act. This also means that all retired members are not eligible to vote according to Section 33(a) and (c) of the Act.
Convening of NEB and NAC
83. It is not contested that 7 members of the 14 national officials are retired and by virtue of Section 33(a) and (c) of the Labour Relations Act not eligible to vote at any meeting. It is also not contested that another 5 members have been elected as branch officials and by virtue of Article 7(II)(a) and (d) constitution, are not eligible to hold a national office. The quorum of the NEB and NAC as provided for under Article 20 of the Union’s constitution which provides as follows –
“Article 20: Quorums, General Standing Orders and the Financial Manual
(1) At all meetings of all organs of the Union, the quorum shall be two thirds of the members entitled to attend and vote.
(2) All proceedings of meetings of all forums of the Union shall be governed by the General Standing Orders established by the organs and approved by, the National Delegates Conference.
(3) All Financial transactions of the Union shall be carried out in accordance to the procedures laid out in Article 21 (on Finances) of this Constitution and the Financial Manual.”
84. NEB having a membership of 33 can only transact business with 22 members while NAC with 14 members can only transact business with 10 members.
85. It is for these reason that the prayer by Mr. Kirwa’s clients and the Registrar of Trade Unions that the NEB meets to plan for the elections is not possible as it does not have quorum.
86. With respect to Trans Nzoia Branch, Sofi Kachwai has not produced an extract from the Registrar of Trade Unions showing that both herself and Charles John Atieli have been registered as officials. Until they are registered, they do not qualify to become delegates.
Conclusion
87. Having reached the findings as above, I make the following orders: -
(i) A declaration be and is hereby issued that the NEB and NAC have no quorum and cannot hold any meetings until after elections are held.
(ii) A declaration be and is hereby issued that Mr. Jerry Ole Kina and Justus Mugo are not eligible to vie for the post of Secretary General of the Union of Kenya Civil Servants.
(iii) A declaration be and is hereby issued that the NEB meeting and NAC meeting held on 13th July 2021 had no quorum.
(iv) A declaration be and is hereby issued that the Delegates’ List adopted by the Court pursuant to the consent dated 9th June 2021 is in conformity with Article 15. 1.1(2) of the Union’s constitution.
(v) An Order be and is hereby issued that SOFI KACHWAI and CHARLES JOHN ATIELI, have not proved that they are registered as officials of Trans Nzoia Branch and have not demonstrated in the documents filed in Court that they are eligible to be delegates at the Quinquennial Delegates Conference.
(vi) An Order be and is hereby issued that the quinquennial elections be held on or before 30th September 2021 at Tom Mboya Labour College.
(vii) An Order be and is hereby issued that the Secretary General ensures that only delegates are allowed into the venue of the Quinquennial Conference and that adequate security is mounted to ensure peaceful and credible elections.
(viii) The application dated 20th June 2021 by Justus Kinyua Mugo, Jerry Ole Kina and Harrison O. Kokebe, be and is hereby dismissed.
(ix) Any other prayers not granted herein are deemed to have been dismissed.
(x) This judgment resolves issues raised in Nakuru Cause No. E44 of 2021 between Sofi Kachwai and Charles John Atieli v Tom Odege and Union of Kenya Civil Servants.
(xi) Each party shall bear its costs.
88. It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 31ST DAY OF AUGUST 2021
MAUREEN ONYANGO
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
MAUREEN ONYANGO
JUDGE