[2023] KEELRC 160 (KLR)
The court found that the Petitioners' challenge to the dissolution of the 1st Respondent union was an abuse of the court process. The Petitioners failed to utilize the statutory right of appeal under Section 30 of the Labour Relations Act, 2007, instead filing a constitutional petition more than two years after the...
Source-derived case information.
- Citation
- [2023] KEELRC 160 (KLR)
- Parties
- Applicant: Charles Ndege Momanyi; Applicant: Eugene Makamba; Applicant: Stephen Malongo; Applicant: John Karuha; Applicant: Wanyama Shiundu; Applicant: Solomon Fedha; Applicant: Teresia Anyango; Applicant: Fanuel Elkana Onyando; Applicant: John Masinde; Respondent: Aviation and Airport Services Workers Union; Respondent: Registrar of Trade Unions; Respondent: Bonnie Nicholas Barasa; Appellant: Livingstone Yegon; Appellant: Moses Malinga; Appellant: Ebu Loter; Appellant: Geoffrey Thomas; Appellant: Evans Kprop; Appellant: Mathew Mati; Appellant: Paul Kipsum; Appellant: Ibrahim Noor; Appellant: Benjamin Ruto; Appellant: Mohammed Ali; Appellant: Hilary Muhalia; Appellant: Agnes Muthoni; Appellant: Paul Ambasa; Appellant: Sydney Otieno; Appellant: Sherrington Odara; Appellant: Edwin Waburiri; Appellant: Harry Nyaga; Appellant: Joseph Kiugi; Appellant: Kenya Aviation Workers Union
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition E162 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Applications for Joinder and Merits of Petition
- Outcome
- Petition and applications declined.
- Judges
- J Rika
- Legal Topics
- Trade Union Dissolution, Right of Appeal, Abuse of Process, Corporate Personality, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ndege Momanyi
Applicant
Eugene Makamba
Applicant
Stephen Malongo
Applicant
John Karuha
Applicant
Wanyama Shiundu
Applicant
Solomon Fedha
Applicant
Teresia Anyango
Applicant
Fanuel Elkana Onyando
Applicant
John Masinde
Applicant
Aviation and Airport Services Workers Union
Respondent
Registrar of Trade Unions
Respondent
Bonnie Nicholas Barasa
Respondent
Livingstone Yegon
Appellant
Moses Malinga
Appellant
Ebu Loter
Appellant
Geoffrey Thomas
Appellant
Evans Kprop
Appellant
Mathew Mati
Appellant
Paul Kipsum
Appellant
Ibrahim Noor
Appellant
Benjamin Ruto
Appellant
Mohammed Ali
Appellant
Hilary Muhalia
Appellant
Agnes Muthoni
Appellant
Paul Ambasa
Appellant
Sydney Otieno
Appellant
Sherrington Odara
Appellant
Edwin Waburiri
Appellant
Harry Nyaga
Appellant
Joseph Kiugi
Appellant
Kenya Aviation Workers Union
Appellant
Procedural Posture
Constitutional Petition / Ruling on Applications for Joinder and Merits of Petition
Legal Issues
- 1 Whether the dissolution of the 1st Respondent trade union was lawful and valid.
- 2 Whether the Petitioners are entitled to orders quashing the dissolution and reinstating the union.
- 3 Whether the Intended Interested Parties should be joined to the proceedings.
Ratio Decidendi
The court found that the Petitioners' challenge to the dissolution of the 1st Respondent union was an abuse of the court process. The Petitioners failed to utilize the statutory right of appeal under Section 30 of the Labour Relations Act, 2007, instead filing a constitutional petition more than two years after the Registrar's decision. The court held that the existence of a specific statutory remedy precluded resort to constitutional litigation. Furthermore, upon dissolution, the 1st Respondent ceased to exist as a juristic person and could neither sue nor be sued. The court declined both the applications for joinder by the Intended Interested Parties and the substantive petition,...
Court Disposition
Petition and applications declined.
Orders
- The two applications by the Intended Interested Parties are declined.
- The Petition is declined.
Full Case Text
Judgment text and source record
90 paragraphs
Momanyi & 8 others v Aviation and Airport Services Workers Union & 2 others; Yegon & 18 others (Intended Interested Party) (Petition E162 of 2021) [2023] KEELRC 160 (KLR) (31 January 2023) (Ruling)
Neutral citation: [2023] KEELRC 160 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Petition E162 of 2021
J Rika, J
January 31, 2023
Between
Charles Ndege Momanyi
1st Petitioner
Eugene Makamba
2nd Petitioner
Stephen Malongo
3rd Petitioner
John Karuha
4th Petitioner
Wanyama Shiundu
5th Petitioner
Solomon Fedha
6th Petitioner
Teresia Anyango
7th Petitioner
Fanuel Elkana Onyando
8th Petitioner
John Masinde
9th Petitioner
and
Aviation and Airport Services Workers Union
1st Respondent
Registrar of Trade Unions
2nd Respondent
Bonnie Nicholas Barasa
3rd Respondent
and
Livingstone Yegon
Intended Interested Party
Moses Malinga
Intended Interested Party
Ebu Loter
Intended Interested Party
Geoffrey Thomas
Intended Interested Party
Evans Kprop
Intended Interested Party
Mathew Mati
Intended Interested Party
Paul Kipsum
Intended Interested Party
Ibrahim Noor
Intended Interested Party
Benjamin Ruto
Intended Interested Party
Mohammed Ali
Intended Interested Party
Hilary Muhalia
Intended Interested Party
Agnes Muthoni
Intended Interested Party
Paul Ambasa
Intended Interested Party
Sydney Otieno
Intended Interested Party
Sherrington Odara
Intended Interested Party
Edwin Waburiri
Intended Interested Party
Harry Nyaga
Intended Interested Party
Joseph Kiugi
Intended Interested Party
Kenya Aviation Workers Union
Intended Interested Party
Ruling
1. This Ruling relates to 2 Applications, filed by the Intended Interested Parties.
2. The first Application is dated October 6, 2022, filed by 1st -18th Applicants. They are members of the 19th Applicant.
3. The 19th Applicant is a registered Trade Union, representing the aviation industry.
4. The Petitioners are previous members of the 1st Respondent, a Trade Union which was dissolved on July 8, 2019, vide Notice of Dissolution issued by the 2nd Respondent.
5. The Petitioners are challenging dissolution of the defunct Trade Union, named as the 1st Respondent herein. They seek Judgment as follows: -a.A declaration that procedure leading to dissolution was in violation of the Petitioners’ rights and therefore null and void.b.Declaration, that dissolution is null and void [repetitious].c.Certiorari, removing into this Court [and quash?] the Certificate of Dissolution dated July 8, 2019. d.The 2nd Respondent is compelled to reinstate the registration of the Union and its membership.
6. The 1st to 18th Applicants rely on the Affidavit of 1st Applicant, Livingstone Yegon, filed on October 6, 2022. He states that he and his colleagues are Employees working in aviation industry. They are represented by the 19th Applicant, and state that they are enjoying industrial harmony, which would be disrupted by re-registration of the defunct Union.
7. The 19th Applicant relies on the Affidavit of its Secretary- General Moses Ndiema, sworn on October 5, 2022. He states that dissolution of the 1st Respondent was voluntary. Its members and officials were taken in by the 19th Applicant. The dissolution-cum-merger, has strengthened worker representation in the aviation industry.
8. Both Applications are founded on the principle of sufficient and identifiable interest in the subject matter.
9. It was agreed by the Parties that the Applications are considered and determined on the basis of their Affidavits and Submissions.
The Court Finds: - 10. The Petition is in abuse of the process of the Court, and it is not necessary to join the Intended Interested Parties to the Petition.
11. The Notice of Dissolution issued on July 8, 2019.
12. Dissolution was a decision made by the 2nd Respondent, after the 1st Respondent voluntarily moved the 2nd Respondent for dissolution. Section 30 of the Labour Relations Act, 2007, states that any person, aggrieved by a decision of the Registrar made under the Act, may appeal to the Industrial Court [E&LRC] against the decision, within 30 days of the decision.
13. The Petitioners have not explained why they did not appeal. They filed their Petition on October 22, 2021, over 2 years after the Registrar made her decision. They cannot sidestep the Legislation under which dissolution was made, through a manipulation of the Constitution. There is a Legislation dealing with the subject matter, and resort to the Constitution is clearly in abuse of the process of the Court.
14. The dissolution of a Trade Union; Employer’s Organisation; or Federation takes effect from the date of its registration, under Section 29[3] of the Labour Relations Act. Dissolution Notice issued on July 8, 2019. The effect of dissolution can be read from Section 21, which is on the converse effect of registration. A dissolved Union ceases to be a body corporate; it does not have perpetual succession and common seal; it no longer has the capacity to sue and be sued, and to enter into contracts; and can no longer hold, purchase or otherwise acquire and dispose of movable and immovable property. It no longer exists.
15. The Petitioners cannot sustain their Petition against the 1st Respondent. It no longer has capacity to sue or be sued, in its own name. It is no longer a corporate body. It is no longer a juristic person, capable of suing or being sued. The 1st Respondent died on July 8, 2019. The Petition as a whole is in abuse of the process of the Court.
It is Ordered: -a.The 2 Applications by the Intended Interested Parties are declined.b.The Petition is declined.c.No order on the costs.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 31ST DAY OF JANUARY 2023. JAMES RIKAJUDGE