[2025] KEELRC 808 (KLR)

Iloti & 14 others (Acting on Their Behalf and on Behalf of Dock Workers Union of Kenya) v Sang & another; Dock Workers Union of Kenya (Interested Party) (Petition E004 of 2025) [2025] KEELRC 808 (KLR) (13 March 2025) (Ruling)

Neutral citation: [2025] KEELRC 808 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Petition E004 of 2025

M Mbarũ, J

March 13, 2025

Between

Amin Iloti

1st Petitioner

Sulman Owour

2nd Petitioner

Kibibi Omeri

3rd Petitioner

Maskat Salim

4th Petitioner

Mejumaa Chirau

5th Petitioner

Ruwa Mpate

6th Petitioner

Gladys Mbithi

7th Petitioner

Ali Mwamrezi

8th Petitioner

Queen Mshihiri

9th Petitioner

Mohamed Shamahuya

10th Petitioner

Maurice Mwanyule

11th Petitioner

August Ruwa

12th Petitioner

Juma Majepo

13th Petitioner

Kennedy Oketch

14th Petitioner

Edwin Wasonga

15th Petitioner

Acting on Their Behalf and on Behalf of Dock Workers Union of Kenya

and

Simon Kiprono Sang

1st Respondent

Registrar of Trade Unions

2nd Respondent

and

Dock Workers Union of Kenya

Interested Party

Ruling

1. The petitioners filed the petition on 23 January 2025 with an application seeking interim orders. The parties attended court on 13 February 2025 to take hearing directions, and the petitioners submitted that they would call evidence at the hearing of the petition. The first respondent and the interested party offered to file written submissions and not call any witnesses.

2. The court directed parties to address whether this was a proper petition and to file written submissions.

3. Parties attended to highlight the analyses of the submissions.

4. The petitioners assert that this is a proper petition because they have been elected union officials, the interested party under the Labour Relations Act (LRA). They seek to enforce the LRA where the 1st respondent convened a meeting in their absence and, in violation of the union constitution, sought to suspend them as officials and trustees. The 1st respondent has since written to the 2nd respondent to remove the petitioners from the list of registered officials and trustees of the interested party trade union.

5. The petitioners further assert that the petition addresses constitutional questions that can only be secured through the orders sought. Where the court finds the petition does not meet the threshold, it should be converted to an ordinary Memorandum of Claim under the Employment and Labour Relations Court (Procedure) Rules.

6. The 1st respondent and the interested party submitted that this is not a proper petition and does not seek to address any constitutional violations that cannot be addressed in an ordinary suit. The petition should be struck out with costs.

7. The petitioners agree that the orders sought can be addressed in an ordinary suit under a Memorandum of Claim. The submissions that the court should convert the petition into an ordinary sought is testimony to this fact. Indeed, Rule 10(1) and (3) of the Employment and Labour Relations Court (Procedure) Rules allow a party to file a petition, but these rules should be read carefully and together;(1)Any person who wishes to institute a petition shall do so in accordance with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement Of the Constitution) Practice and Procedure Rules.(2)…(3)Notwithstanding anything contained in this rule, a person may seek the enforcement of any constitutional right and freedom or any Constitutional provision in a statement of claim or other suit filed before the Court.

8. In a Memorandum of Claim, a party is allowed to urge a case for judicial review, the enforcement of constitutional rights and freedoms without invoking the constitutional petition route, which should be reserved for matters seeking the interpretation of the constitution vis-a-vis a given statute. The Court of Appeal aptly captures this in the case of Sumayya Athmani Hassan v Paul Masinde Simidi & another [2019] KECA 107 (KLR), the court held that;The Article 41 rights are enacted in the Employment Act and Labour Relations Act. The two Acts and the rules made thereunder provide adequate remedy and orderly enforcement mechanisms. The 1strespondent filed a petition directly relying on the provisions of the Constitution for enforcement of contractual rights governed by the Employment Act without seeking a declaration of invalidity of the provisions of the Employment Act or alleging that the remedies provided therein are inadequate. The petition did not raise any question of the interpretation or application of the Constitution.

9. In the case of Njue v Kenya Maritime Authority & another [2023] KEELRC 820 (KLR) and Ngure v Tear Fund [2023] KEELRC 1324 (KLR) where the court held that;The rights alleged to have been violated are capable of being articulated in a normal suit before this Court and granted that there is no particularization of the alleged violations of Articles 3(1), 10(1) and (2), 19(1) and (2), 20(1) and (2), 25(1), 27(1) and (5), 28, 31, 41, and 47(1). Whereas theConstitution of Kenya may well be impacted by the actions of the Respondent herein, not every dispute where there is an infraction of the Constitution elevates said dispute to the threshold for a Constitutional Petition as was filed here. …No orders are sought seeking the interpretation or application of the Constitution. This is not a proper petition. The petitioners should have moved the court under an ordinary suit in a Memorandum of Claim.

Should the court convert this petition to an ordinary suit? 10. The court moved the parties to address the issue at hand. Without demonstrating any constitutional question, the order that holds is to strike out the petition. Each party will bear its costs.

DELIVERED IN OPEN COURT AT MOMBASA ON THIS 13 DAY OF MARCH 2025. M. MBARŨJUDGE