[2019] KEELRC 1153 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT KISUMU

PETITION NO. 7 OF 2017.

(Before Hon. Justice Mathews N. Nduma)

HUMPHREY O. AORO......................................................................... 1ST PETITIONER

ANTONY OBONGO...............................................................................2ND PETITIONER

VERSUS

LISERO PETER......................................................................................1ST RESPONDENT

MWAI MAURICE..................................................................................2ND RESPONDENT

PHILIP ONYANGO...............................................................................3RD RESPONDENT

AGGREY MUHALI...............................................................................4TH RESPONDENT

BETTY OHITO......................................................................................5TH RESPONDENT

JACKLINE OMUNDI...........................................................................6TH RESPONDENT

KENYA UNIVERSITIES STAFF UNION MASENO BRANCH......7TH RESPONDENT

JUDGMENT

1. The petitioners moved the court seeking the following remedies:

a. Declaration that the respondents barring them from participating in branch activities are unlawful and in breach of Article 17 of the constitution of Kenya Universities Staff Union.

2. The petitioners and the 1st to 6th respondents are officials of Kenya University Staff Union Maseno Branch, the 7th respondent.

Facts of the case

3. The facts of the case by the petitioners is that from the month of March 2016 when they were elected into office till to date of filing the suit on 24th February 2017, the respondents had refused the petitioners from carrying out their lawful duties and roles as elected officials of the Branch Union at Maseno. That they have been denied access to branch meetings and seminars. That they have not been paid allowances by the respondents. That the respondents have held meetings outside the union offices and excluding the petitioners from such meetings and operated accounts without involving the petitioners.

4. The petitioners allege that the actions by the respondents are unlawful and violation of Article 41 and 47 of the constitution of Kenya 2010 and in breach of Article 17 of the Union constitution. The 1st petitioner was elected organizing secretary and 2nd petitioner, Deputy Secretary of the Maseno Branch of the union respectively.

Replying Affidavit

5. The respondents state in their replying affidavit filed on 19th April 2017 that Maseno Branch Union Committee does not exist in the constitution of the 7th respondent but instead there is KUSU, Maseno University Branch Executive Committee.

6. The respondents also deny having sidelined the petitioners from the activities of the Branch Executive Committee. That they have always been notified of Branch activities and provided minutes of the Maseno University Branch Executive Committee meeting and copies of letters of invitation marked “PO 2”.

7. The respondents deny refusing to pay the petitioners allowances and state that the petitioners have not requested for any such payments.

8. The respondents also deny having suspended the petitioners from office and or spreading falsehoods against them.

9. The respondents state that the petition lacks merit and it be dismissed.

Determination

10. The issues for determination are:

a. Whether the petitioners have proved violation of their rights under Article 41 and 47 of the constitution of Kenya 2010.

b. Whether the petitioners have proved violation of Article 17 of the Union constitution.

c. Whether the petitioners are entitled to the reliefs sought.

Issue I

11. The matters in dispute in this case are largely disputes of facts. The allegation of fact made by the petitioners in the petition and in the statements by the 1st and 2nd petitioners regarding the manner they have been excluded from union activities since they were elected as officials of the Maseno Union branch in March 2016 have been contradicted by the respondents in a sworn affidavit. The petitioners did not elect to adduce oral evidence in this matter to avail opportunity to the respondents to cross examine them and the court with a better opportunity to determine the truthful position between the two versions by the parties which are mutually destructive.

12. The particulars of violation of Article 41 and 47 of the constitutionand Article 17 of the Union constitution have also not been pleaded with reasonable precision so as to enable the respondents to know their acts or omissions complained of and how the same have occasioned a breach of the petitioners’ specific constitutional rights.

13. Instead, the petitioners have made a general allegation of exclusion from unspecified meetings; unspecified seminars and training and unspecified allowances.

14. The petitioners did not present before court any documentary evidence of their request to be included in stated activities or to be paid stated allowances.

15. The petition is bare and without the evidence stated.

16. The court finds that this petition does not meet the basic threshold set out by the Court of Appeal in Anarita Karimi Njeru vs R (1967-1980) KLR.

17. The petitioners would have benefited better from a normal claim coupled with oral testimony to prove their case on a balance of probabilities.

18. The petitioners have failed to prove violation of their constitutional rights under the constitution of Kenya 2010. The petitioners did not also demonstrate how Article 17 of the Union constitution was violated by the respondents.

19. Accordingly, and in answer to issues (a) (b) and (c), the petition fails for want of proof of the allegations made by the petitioners. The petitioners are therefore not entitled to the reliefs sought.

20. The petition is dismissed and each party to bear their costs of the suit.

Judgment Dated, Signed and delivered this 11th day of July, 2019.

Mathews N. Nduma

Judge

Appearances

Mr. Nyaga for petitioners

Mr. Odeny for respondents

Chrispo: Court clerk