[2023] KEELRC 926 (KLR)

Nundu & another v Kenya County Government Workers Union (Nairobi Branch) & 4 others (Petition E110 of 2022) [2023] KEELRC 926 (KLR) (13 April 2023) (Judgment)

Neutral citation: [2023] KEELRC 926 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E110 of 2022

MN Nduma, J

April 13, 2023

IN THE MATTER OF THREATENED INFRINGEMENT AND CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLE 10(1), 19, 22, 23, 24, 27, 41, 43, 46 and 47 OF THE CONSTITUTION OF KENYA, 2010

Between

Samuel Nundu

1st Petitioner

David Ngesa

2nd Petitioner

and

Kenya County Government Workers Union (Nairobi Branch)

1st Respondent

Kenya County Government Workers Union (Staff Branch)

2nd Respondent

Nairobi City County

3rd Respondent

The Governor, Nairobi City County

4th Respondent

The County Secretary, Nairobi City County

5th Respondent

Judgment

Judgment 1. The petitioner brought this petition dated July 4, 2020 seeking the following reliefs:-(a)A declaration that the strike notice dated June 22, 2022 is illegal, null and void.(b)A permanent injunction do issue restraining the 1st and 2nd respondent, their members and the leadership from carrying on with the intended strike.(c)A permanent injunction do issue restraining the 3rd respondent’s employees from participating in the intended strike.(d)Any further relief that the court may deem fit to grant.

2. The 1st and 2nd petitioners describes themselves as persons working for gain in Kibera, while the 3rd respondent is a limited liability company carrying out business at Nairobi.

3. The petitioners purport to have instituted this action on their own behalf and on behalf of all other women, children and the general residents of Nairobi County under article 22 of the Constitution

4. The petitioners are aggrieved by a strike notice issued by the 1st respondent and 2nd respondents on June 22, 2022 which notice the petitioners allege is in blatant disregard of section 79 of the Labour Relations Act. The strike was said to commence on July 4, 2022. That the livelihood of residents of Nairobi City will be interfered with if the strike is not stopped. That the issues complained of are subject of a pending case in cause No E018 of 2022 filed by the 1st and 2nd respondents.

5. That the strike threatens economic and social rights of the petitioners under article 43 of the Constitution and the petitioners are entitled to equal protection of the law under article 27 of the Constitution. Interim orders suspending the strike were issued by Hon Maureen Onyango, J on July 5, 2022.

6. The 1st and 2nd respondents filed replying affidavit and written submissions stating that on June 22, 2022, the 1st and 2nd respondents issued a strike notice intending to have their members commence strike on July 4, 2022. The 1st and 2nd respondents states that article 41 (1) (d) of the Constitution guarantees the 1st and 2nd respondents the right to go on strike.

7. That section 46 of the Employment Act, 2007 further guarantees the rights to go on strike and that participating in a lawful strike does not constitute a fair reason for dismissal.

8. The 1st and 2nd respondents further aver that section 76 of the Labour Relations Act allows a person to participate in a strike if the dispute that forms the subject matter of the strike concerns terms and conditions of service.

9. That the notice dated June 22, 2022 outlines the basis of the intended strike which reasons are unresolved disputes concerning terms and conditions of employment.

10. That the suit has been overtaken by events and therefore the court ought not to issue any orders in vain since the impugned strike notices called for a strike that was to take place in July, 2022.

11. The 1st and 2nd respondent refers to the case of Kalya Soi Farm Cooperative Society v Paul Kirui and another [2003] eKLR where it was held:-As is said “equity, like nature will do nothing in vain” on the basis of the maxim courts have held again and again it cannot satisfy itself by making orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes if it will be impossible to comply with the injunction sought, the court will decline to grant it. ”

12. That the petition be dismissed with costs.

13. The 3rd, 4th and 5th respondents filed replying affidavits and submissions largely in support of the petition. The 3rd,4th and 5th respondents state that the intended strike was unlawful since the union did not comply with section 62, 76 and 78 of the Labour Relations Act. That the Unions never followed the laid out procedure before issuing out the strike notice dated June 22, 2022. That the grounds for intended strike have been dismissed by the parties and no meeting has ever been held between the respondents and the negotiating committee (Joint Branch Executive Committee Nairobi County) and therefore the 1st and 2nd respondents have not adhered to the procedure under section 76 of the Labour Relations Act.

14. That no recognition agreement has been entered into by the parties prior to the issuance of notices. That parties have not gone for conciliation as provided under section 62 of the Labour Relations Act or under their own internal machinery. That there is no unresolved dispute in terms of section 76 of Labour Relations Act.

15. That the 3rd, 4th, and 5th respondents were not served with seven (7) days notice and 4th respondent in particular was not served in persons.

16. That the 3rd, 4th and 5th respondents have fully implemented the collective bargaining agreement between them and the 1st and 2nd respondents and have given a general wage increase to all Nairobi county employees thus the industrial action is unnecessary and unreasonable. That the petition be allowed.

Determination 17. The court has considered the pleadings and the submissions by the parties and proceeds to deliberate the following issues for determination.(i)Whether the petitioners have established any cause of action against the respondents.(ii)Whether the suit has been overtaken by events and therefore moot.

18. In answer to the issue whether the suit is moot, the court notes that the sole purpose of filing the suit was to declare the strike notice dated June 22, 2022 illegal, null and void and issue an injunction restraining the 1st and 2nd respondents, their members and leadership from carrying on with the intended strike.

19. No orders were sought at all against the 3rd, 4th and 5th respondents by the petitioners.

20. The petitioners have not disclosed in the petition the source of the information set out in the petition. The alleged issues in dispute are between the 1st and 2nd respondents and the 3rd, 4th and 5th respondents. The dispute arose from a Collective Bargaining Agreement (CBA) concluded between the 1st and 2nd respondents and the 3rd respondent.

21. The Collective Bargaining Agreement is a contract of employment between the 3rd respondent and individual employees of the 1st and 2nd respondents. The petitioners are not privy to the Collective Bargaining Agreement and are therefore strangers to the matters they aver without disclosing source of their information to the court.

22. The proper petitioners in this case would have been the 3rd, 4th and 5th respondents who appear to collude in this suit with the petitioners who are not members of the 1st and 2nd respondents nor are they officials of the 3rd respondent.

23. The court finds that the petitioners are not suited to bring this suit on behalf of the 3rd, 4th and 5th respondents. The petitioners have failed to disclose in any specific manner how their rights are threatened or have been violated by the 1st and 2nd respondents whose rights to go on strike are guaranteed under article 41 of the Constitution and regulated by law and Collective Bargaining Agreement. The intended strike by members of the 1st and 2nd respondents was to take place on July 4, 2022, a date which is long past. We have a new County Government of Nairobi comprising of a new Governor and County Secretary.

24. Clearly, the suit has been overtaken by events in addition to the failure by the petitioners to disclose any cause of action against the 1st and 2nd respondents. The petitioners in addition to being unsuited to bring this suit in collusion with the 2nd, 4th and 5th respondents have failed the test set out in Annarita Karimi Njeru case where the court held as follows:-i.Constitutional violations must be pleaded with a reasonable degree of precision.(ii)The article of the Constitution which entitles rights to the petitioner must precisely be enumerated and how one is entitled to the same.(iii)The violation must be particularized in precise manner.(iv)The manner in which the alleged violation was committed and to what extent.”

25. The petition does not therefore disclose any justiciable cause of action brought out by the petitioners.

26. Furthermore, the suit has been overtaken by events.

27. Accordingly, the petition lacks merit and is dismissed with no order as to costs.

DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 13TH DAY OF APRIL, 2023. MATHEWS N. NDUMAJUDGEAppearanceMr. Ochieng for petitioners.Odero & partners Advocates for 1st and 2nd respondentsOruenjo Kibet and Khalid Advocates for 5th respondentJ.W. Weche Advocates for 3rd and 4th respondents