[2023] KEELRC 2618 (KLR)

Kenya Union of Water and Sewerage Employees v Registrar of Trade Unions; Olwalo (Interested Party) (Judicial Review E008 of 2023) [2023] KEELRC 2618 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEELRC 2618 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Judicial Review E008 of 2023

NJ Abuodha, J

October 27, 2023

Between

Kenya Union of Water and Sewerage Employees

Applicant

and

Registrar of Trade Unions

Respondent

and

George Olwalo

Interested Party

Ruling

1. The Interested Party herein filed a preliminary objection dated 16th June, 2023 in which it stated in the main that:a.the Honourable Court lacked jurisdiction to hear and determine the application herein by dint of the fact that it was time barred thus offended the mandatory provisions of section 9(3) of the Law Reform Act as read with Order 53 rule 2 of the Civil Procedure Rules, 2010. b.The applicant lacked the requisite locus standi to institute the suit herein on behalf of the trade union and as such the application flies against the dictates of section 55 of the Labour Relations Act as read together with the constitution, rules and regulations of Kenya Union of Water and Sewerage Employees

2. When the matter came before me on 16th October, 2023, I directed that since the issue of limitation is so fundamental and goes to the root of the suit, the same be decided first.

3. Section 9(3) of the Law Reform Act (cap 26) provides:(3)In the case of an application for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

4. The preceding subsection (2) provides:Subject to the provisions of subsection (3), rules made under subsection (1) may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates.

5. This provision is replicated in Order 53 rule 2 of the Civil Procedure Rules. According to Mr. Oure for the Interested Party, the gravamen of the instant application was an alleged failure to effect changes of the leadership of the Union following a purported illegal NEC meeting held on 9th July, 2021. From the purported pleadings filed, specifically the chamber summons dated 7th February, 2023 and statutory statement dated 20th February, 2023 it was apparent that the instant application had not been filed within the mandatory prescribed time being six month’s from the date of the said inaction by the respondent. In this regard Counsel relied on the case of Republic vs Minister for Lands and Settlement & 2 Others where it was stated“the use of the word shall in section 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules emphasizes the need to comply with this precondition before leave is granted to institute judicial review application.”

6. The applicant on the other hand submitted that the issues raised in the preliminary objection were out of point and did not meet the threshold for raising a preliminary objection. According to the applicant the case before the Court was. For orders of Prohibition and Mandamus to which the six month’s limitation did not apply. The respondent did not file any submission.

7. Preliminary objection was defined in the famous case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors (1969) EA 696. It was stated thus:“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.Sir Charles Newbold, P. went further and stated:“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

8. A close reading of section 9(2) and (3) of Law Reform Act together with Order 53(1) of the Civil Procedure Rules reveal that an application for orders of mandamus, prohibition or certiorari shall not be made unless leave therefor is sought prior thereto and obtained. However subsection 2 of the Act cited above provides that rules made under subsection (1) may prescribe (emphasis mine) that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates. Order 53 of the Civil Procedure Rules was enacted pursuant to this provision. Under sub rule 3 of Order 53 it is provided thus:“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, conviction or other proceedings for the purpose of its being quashed, leave shall not be granted unless the application for leave is made not later than six months after the date of that judgment, order, decree, conviction or other proceeding or such shorter period as may be prescribed under any written law; and where that judgment, order, decree, conviction or other proceeding is subject to appeal, and a time is limited by law for the bringing of the appeal, the court or judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired

9. Whereas subsection 2 of section 9 of the Law Reform Act provides that subject to sub rule 3, rules made under subsection 1 may prescribe (emphasis mine) that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, be made within six months, or such shorter period as may be prescribed, after the act or omission to which the application for leave relates, however when it comes to Order 53 sub rule 3, the only judicial review order mentioned and subject to the six month’s rule, is the order of certiorari . What this implies is that under section 9 of the Law Reform Act read together with Order 53 of the Civil Procedure Rules, no application for judicial review orders of mandamus, prohibition and certiorari shall be made unless leave is first sought and obtained but for the order certiorari such order shall not be applied for after expiry of six months from the date of the judgment, order, decree, conviction or other proceeding sought to be quashed. This is line with the principle of expressio unius est exclusio alterius of statutory interpretation. That is to say “to express or include one thing implies the exclusion of the other.”

10. In the case before me the applicant seeks among others, an order of prohibition restraining the respondent from continuing to refuse to register changes of the applicant’s union’s office structure made at its NEC as contained in the duly filed form Q dated 9th July, 2022. The applicant further seeks an order of mandamus to compel the respondent and or its agents and servants to register the changes to the union officials of the applicant as contained in Form Q dated 9th July, 2022. The applicant has not sought any order of certiorari which is understandable since no decision has been made by the respondent capable of being quashed.

11. From the foregoing the preliminary objection is therefore found without merit and is hereby dismissed. The application shall proceed for hearing and determination on merits upon parties taking appropriate directions.

12. It is so ordered.

DATED AT NAIROBI THIS 27TH DAY OF OCTOBER, 2023DELIVERED VIRTUALLY THIS 27TH DAY OF OCTOBER, 2023ABUODHA JORUM NELSONJUDGE