[2016] KEELRC 1057 (KLR)
The court found that while the applicant and interested parties, as union-cleared candidates, retained the right to participate in union elections and campaign, the respondent was justified in restricting access to the Port due to its status as a 24-hour secured facility with no non-working hours. The respondent had...
Source-derived case information.
- Citation
- [2016] KEELRC 1057 (KLR)
- Parties
- Applicant: Judith Abuka; Respondent: Kenya Ports Authority; Interested Party: Michael Kituku; Interested Party: Benson Juma Thoya; Interested Party: Khamisi Tsori; Interested Party: Pamela Irene Odhiambo; Interested Party: Sililu Badi; Interested Party: Oscar Bwana Mkuu Bakari; Interested Party: Emmanuel Ndoro Dida
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 11 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Applications for Access, Contempt, and Setting Aside Orders
- Outcome
- All applications treated as spent; file closed with no order as to costs.
- Legal Topics
- Trade Union Elections, Freedom of Association, Workplace Access, Employee Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judith Abuka
Applicant
Kenya Ports Authority
Respondent
Michael Kituku
Interested Party
Benson Juma Thoya
Interested Party
Khamisi Tsori
Interested Party
Pamela Irene Odhiambo
Interested Party
Sililu Badi
Interested Party
Oscar Bwana Mkuu Bakari
Interested Party
Emmanuel Ndoro Dida
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Applications for Access, Contempt, and Setting Aside Orders
Legal Issues
- 1 Whether the applicant and interested parties were entitled to access the Port for union election campaigning after dismissal from employment.
- 2 Whether the respondent's provision of an alternative campaign venue satisfied legal requirements for freedom of association.
- 3 Whether the respondent or its officers were in contempt of court for denying access to the Port despite a court order.
Ratio Decidendi
The court found that while the applicant and interested parties, as union-cleared candidates, retained the right to participate in union elections and campaign, the respondent was justified in restricting access to the Port due to its status as a 24-hour secured facility with no non-working hours. The respondent had provided a reasonable alternative venue for campaigning, which was not disclosed to the court when ex parte orders were sought. The court held that the orders for access were unnecessary and granted without full disclosure. As the elections had already occurred and a suitable alternative was provided, both the application for contempt and the application to set aside access...
Court Disposition
All applications treated as spent; file closed with no order as to costs.
Orders
- All applications on record are treated as spent.
- No order as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT AT MOMBASA
MISCELLANEOUS APPLICATION NUMBER 11 OF 2016
BETWEEN
JUDITH ABUKA ………...……………………………………………………………………………CLAIMANT
VERSUS
KENYA PORTS AUTHORITY ………………………………………………………………. RESPONDENT
AND
MICHAEL KITUKU
BENSON JUMA THOYA
KHAMISI TSORI
PAMELA IRENE ODHIAMBO
SILILU BADI
OSCAR BWANA MKUU BAKARI
EMMANUEL NDORO DIDA………………………………………… INTERESTED PARTIES
RULING
1. The Applicant and the Interested Parties were candidates in the Dock Workers’ Union elections, which were successfully held sometime in April 2016.
2. In the course of campaigning for their desired positions within the Union, they claimed to have been denied free access to reach voters at the Port, by the Respondent Employer. They filed this Miscellaneous Application before the Court seeking the Court to order the Respondent to allow them access.
3. The Court allowed those orders ex parte, and directed the file closed if there were no subsequent applications filed any of the Parties.
4. Such applications were however filed, and the file remains open. One was filed by the Applicant and the Interested Parties, alleging they were denied access, despite having served the Respondent with the Court order. They sought to have the Principal Officers of the Respondent cited for contempt of Court. The second application was made by the Respondent. It sought to have the orders of access rescinded. The Respondent argued that the Applicant and the Interested Parties were no longer Employees of the Respondent. They were summarily dismissed for involvement in a strike which the Court had concluded was illegal. The Union itself in any event had asked to be facilitated by the Respondent in conducting its campaign meetings, and had been offered Makupa Welfare Club as a suitable venue where candidates could campaign. It was pointed out by the Respondent that the Port is a 24 hour operations area, and is a secured facility, where the ex-Employees could not have free entry.
The Court Finds:-
5. The Dock Workers Union conducted a successful electoral exercise in April 2016. Parties must be congratulated for conducting a successful ballot. Such democratic exercises are rare in our Trade Unions.
6. It is the right of all persons cleared by a Trade Union, to fully participate in the competition for office. The Dock Workers’ Union Constitution, the Constitution of Kenya, and the Labour Relations Act 2007, demand all persons shall exercise their freedom of association, which includes the right to participate in the legitimate activities of their Associations, without any hindrance.
7. The Applicant and the Interested Parties, although no longer Employees of the Respondent, remained Members of the Dock Workers’ Union, cleared to participate as candidates for office by their Union, and entitled therefore to sell their policies to the Respondent’s Employees who are Members of the Dock Workers Union. They were entitled to access the workplace during non-working hours, and campaign. The Employer has no role in clearing of candidates to run for Trade Union office. It does not determine their eligibility to run for office. Elections are an internal Trade Union exercise. The Applicant and the Interested Parties were entitled to access the workplace to sell their policies.
8. The Respondent however is operational for 24 hours. There are no non-working hours. The Applicant and the Interested Parties sought for access during non-working hours. The Port is a restricted area. Access is limited. Even persons actively working for the Port, have regulated access. There is no free access. There are no non-working hours. The Respondent made arrangements for Trade Union candidates to conduct their campaigns at another of its suitable premises, the Makupa Welfare Club. The Applicant and the Interested Parties did not deny there was an alternative to the Port, offered by the Respondent. They did not disclose this to the Court when the orders issued.
10. In the circumstances the Court finds the application for orders of access to the Port was not necessary. The orders were granted in the absence of a full disclosure of material facts. The Applicant and the Interested Parties had a platform to campaign, provided by their ex-Employer. They were not discriminated against.
11. As the elections have come and gone, the Court shall treat the application seeking to set aside orders of access granted to the Applicants and the Interested Parties, as spent. It would serve no useful purpose to order that those orders are set aside. Similarly the application for contempt of Court is redundant. It has been shown the Respondent had offered the Dock Workers Union and its Members a facility to conduct their electoral activities. It was not proper to demand access to the Port, which is a restricted area, and which operates 24 hours, while a reasonable facility had been availed by the Respondent. The Court shall therefore treat all applications on record as spent, with no order on the costs. This file is closed.
Dated and delivered at Mombasa this 16th day of June 2016
James Rika
Judge