[2020] KEELRC 31 (KLR)
The court found that the applicant's suspension as Branch Executive Secretary of KNUT Mumias Branch was not conducted in accordance with the union constitution, which requires a two-thirds majority decision of all members present at a duly called Branch General Meeting. No evidence was presented to show that such a...
Source-derived case information.
- Citation
- [2020] KEELRC 31 (KLR)
- Parties
- Applicant: John Wesonga Lutta; Respondent: Wesa P.M. Malack; Respondent: Kenya National Union of Teachers (KNUT) Mumias Branch; Respondent: Kenya National Union of Teachers; Respondent: Registrar of Trade Unions
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 60 of 2020
- Procedural Posture
- Miscellaneous Application / Interlocutory Application Ruling
- Outcome
- interim orders granted; application allowed; costs in the cause
- Judges
- MN Nduma
- Legal Topics
- Trade Union Governance, Suspension of Union Officials, Natural Justice, Union Constitution Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wesonga Lutta
Applicant
Wesa P.M. Malack
Respondent
Kenya National Union of Teachers (KNUT) Mumias Branch
Respondent
Kenya National Union of Teachers
Respondent
Registrar of Trade Unions
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Application Ruling
Legal Issues
- 1 Whether the suspension of the claimant as Branch Executive Secretary was conducted in accordance with the union constitution and rules of natural justice.
- 2 Whether the Registrar of Trade Unions should be restrained from registering changes of officials pending determination of the claim.
- 3 Whether due process was followed in the purported changes of union officials.
Ratio Decidendi
The court found that the applicant's suspension as Branch Executive Secretary of KNUT Mumias Branch was not conducted in accordance with the union constitution, which requires a two-thirds majority decision of all members present at a duly called Branch General Meeting. No evidence was presented to show that such a meeting took place or that due process was followed. The respondents did not oppose the application, and the court was satisfied that the applicant had established a prima facie case for the grant of the orders sought. Accordingly, the court granted interim orders to maintain the status quo of union officials as at 21/7/2020 and restrained the Registrar of Trade Unions from...
Court Disposition
interim orders granted; application allowed; costs in the cause
Orders
- The positions and status of the officials of KNUT Mumias Branch prior to the purported changes made on or about 21/7/2020 are to be reverted to and maintained pending hearing and determination of the claim.
- The Registrar of Trade Unions is restrained from effecting any changes on the register of trade unions in respect of the position of Branch Executive Secretary, KNUT Mumias Branch, pending the hearing of this claim and to maintain status quo before 21/7/2020.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 60 OF 2020
JOHN WESONGA LUTTA..........................................................................................................CLAIMANT
VERSUS
WESA P.M. MALACK (SUED AS THE PURPOTEDACTING EXECUTIVE SECRETARY – KENYA
NATIONAL UNION OF TEACHERS (KNUT)MUMIAS BRANCH.........................1ST RESPONDENT
KENYA NATIONAL UNION OF TEACHERS (KNUT) MUMIAS BRANCH..........2ND RESPONDENT
KENYA NATIONAL UNION OF TEACHERS.............................................................3RD RESPONDENT
REGISTRAR OF TRADE UNIONS...............................................................................4TH RESPONDENT
RULING
1. Application dated 14/8/2020 seeks an Order in the following terms:-
(a)The Registrar of Trade Unions be restrained from registering the purported changes of officials of the Kenya National Union of Teachers (KNUT) Mumias branch made by the Secretary General of Kenya National Union of Teachers Hon. Wilson Sossion or about 27/7/2020 in suspending the Branch Executive Secretary Mr. John Wesonga Lutta and appointing Mr. WESA P.M. MAGAK the current Assistant Executive Secretary of the branch, the 1st Respondent herein to act as the Branch Executive Secretary, pending the hearing and determination of the claim.
2. The application is supported on grounds set out on the Notice of Motion marked (i) to (Xiii) the gravamen of which may be summarized that due process was not followed in the said suspension and the same is therefore contrary to the union constitution and the rules of natural justice and is unlawful and unfair. That suspension of a branch official may only be done by a 2/3 majority decision of all members attending a duly called Branch General meeting. That this did not happen in the present case.
3. That the respondents were duly served with the application and have not filed a replying affidavit. That the application is unopposed and it be granted with costs.
4. The applicant filed an affidavit of Service dated 22/8/2020 by a duly Qualified Process Server Daniel Kombo Omukoko who depones that he had on 24/8/2020 visited the office of the 2nd respondent and served summons, Memorandum of Claim and this application on one Mr. Edward Maloba Omondi, the vice Chairperson of the 2nd respondent.
5. The applicant has since filed written submissions as per directions of the Court given on 17/8/2020.
6. The Court has duly considered the application and finds same to be mentioned and have allowed the application and granted an Order in terms of prayer 3, 5 and 6 of the Notice of Motion.
7. Accordingly,
(i) The positions and status of the officials of Kenya National Union of Teachers (KNUT) Mumias Branch prior to the purported changes made on or about 21/7/2020 by the Secretary General of Kenya National Union of Teachers (KNUT) Hon. Wilson Sossion be reverted to and maintained pending hearing and determination of this claim.
(ii) The registrar of Trade Unions not to effect any changes on the register of trade unions in respect of the position of Branch Executive Secretary, KNUT, Mumias Branch pending the hearing of this Claim and to maintain status quo before 21/7/2020.
(iii) Costs in the cause.
Dated and delivered at Nairobi this 17th day of December, 2020.
MATHEWS N. NDUMA
JUDGE
ORDER
In view of the declaration of measures restricting court of operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties online with their consent. 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 has 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 18 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.
MATHEWS N. NDUMA
JUDGE
Appearances
Mr. Rakoro for the Claimant/Applicant
Chrispo: Court clerk