[2023] KEELRC 1007 (KLR)

Odiwuor v Universities Academic Staff Union & 4 others; Otieno & another (Interested Parties) (Cause E015 of 2023) [2023] KEELRC 1007 (KLR) (3 May 2023) (Ruling)

Neutral citation: [2023] KEELRC 1007 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kisumu

Cause E015 of 2023

S Radido, J

May 3, 2023

Between

Wycliffe Humphrey Odiwuor

Claimant

and

Universities Academic Staff Union

1st Respondent

Universities Academic Staff Union, Maseno University Chapter

2nd Respondent

Dr Stephen Onyango Okeyo

3rd Respondent

Dr Benard Okal (Sued as the Commissioner to the by-election)

4th Respondent

Dr Sarah Obinga (Sued as the Commissioner to the by-election)

5th Respondent

and

George Ojuondo Otieno

Interested Party

Alexander Okoth Ochieng

Interested Party

Ruling

1. The Universities Academic Staff Union, Maseno University Chapter (the Union chapter) issued a notice for by-elections to fill the position of Union chapter Secretary on February 11, 2023. The by-election was to be held on March 10, 2023.

2. Dr Stephen Onyango Okeyo (3rd Respondent), George Ojuondo and Alexander Okoth Ochieng were cleared to vie for the position on February 21, 2023.

3. On March 9, 2023, Wycliffe Humphrey Odiwuor (the applicant) moved the Court contesting the eligibility of the 3rd Respondent to stand for the office of the Union chapter Secretary primarily because the 3rd Respondent had been dismissed by the University on February 27, 2023.

4. Since the challenge was mounted on the eve of the elections, the Court declined to issue ex-parte orders, and the applicant was directed to serve the Respondents and Interested Parties.

5. The by-elections went ahead as scheduled and the 3rd Respondent was elected.

6. When the parties appeared in Court on March 13, 2023, the applicant informed the Court that due to the changed circumstances, he wanted to amend his pleadings (the Court granted the leave).

7. On the same day, the applicant filed a Motion seeking orders:(1)…(2)That pending the hearing and determination of this application inter-partes, an interim order of injunction do issue to the 1st, 2nd and 3rd Respondents restraining them from forwarding the name of the 3rd Respondent to the Registrar of Trade Unions for registration and further restraining the 3rd Respondent from transacting any business whatsoever of the 2nd Respondent as the chapter Secretary.(3)That pending the hearing and determination of this suit, an interim order of injunction do issue to the 1st, 2nd and 3rd Respondents restraining them from forwarding the name of the 3rd Respondent to the Registrar of Trade Unions for registration and further restraining the 3rd Respondent from transacting any business whatsoever of the 2nd Respondent as the chapter Secretary.(4)That costs of this application be provided for.

8. The main ground in support of the Motion was that the 3rd Respondent was not eligible to contest or hold any office with the Union because he was no longer in the service of Maseno University, having been dismissed on 27 February 2023.

9. The applicant cited articles 4, 14 and 20 of the Union’s constitution.

10. The 1st, 2nd, 4th and 5th Respondents filed Grounds of Opposition to the Motion on 16 March 2023 and a replying affidavit on 23 March 2023, contending that the application was incompetent, the orders sought had been overtaken by events as the 3rd Respondents name had already been forwarded to the Registrar of Trade Unions, the 3rd Respondent had not resigned as a member of the Union and was thus entitled to enjoy all rights accruing to members, membership of the Union did not cease with dismissal by the employer and that it was not their duty but that of the Labour Officer to forward the name of the person elected to the Registrar of Trade Unions for registration.

11. The applicant filed a supplementary affidavit and submissions on 3 April 2023 while the 1st, 2nd, 4th and 5th Respondents filed their submissions on April 6, 2023.

12. The 3rd Respondent filed his submissions on April 12, 2023.

13. The Court has considered the Motion, affidavits, Grounds of Opposition and submissions.

14. The applicant objected to the competency of the 3rd Respondent’s replying affidavit on the ground that there was no evidence of written authority from the 1st Respondent.

15. Since the 3rd Respondent is currently an elected official of a chapter of the 1st Respondent and he also deposed that he had the requisite authority to swear the affidavit on behalf of the 1st, 2nd, 4th and 5th Respondents. The applicant has not placed any evidence before the Court that the authority was not given and at this juncture, the Court cannot disregard the affidavit and the assertions therein.

16. In order to secure the order(s) sought, the applicant was required to establish a prima facie case.

17. The Court has looked at the articles of the Union’s constitution (articles 4, 14 and 20), which the applicant contends locked out the 3rd Respondent from contesting or holding an office with the Union.

18. Article 4 provides for membership, Article 14 speaks to elections while Article 20 is on the designation and duties of chapter officers.

19. The Court has also looked at section 31(1) of the Labour Relations Act which provides:(1)The officials of a trade union or employers’ organisation shall be persons who are, or have been, engaged or employed in the sector for which the trade union or employers’ organisationis registered.

20. At this interlocutory stage, and in light of section 31(1) of the Labour Relations Act, the Court is of the view that it is debatable whether the mere fact that the 3rd Respondent had been dismissed would be enough to lock him out of holding a union office, and therefore, the applicant has not established a prima facie case.

21. The Court is also of the view that it is debatable whether the membership eligibility criteria outlined in Article 4(i)(a) of the Union’s Constitution is applicable to determinations as to whether membership comes to an end.

22. The orders sought in the Motion dated 13 March 2023 are therefore declined.

23. The Cause should be progressed to a hearing on the merits.

24. Costs of the Motion in the cause.

DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 3RD DAY OF MAY 2023. RADIDO STEPHEN, MCIARBJUDGEAppearancesFor applicant O.J. Okoth & Co. AdvocatesFor 1st, 2nd, 4th and 5th Respondents Onsongo & Co. AdvocatesFor 3rd Respondent Amos O. Oyuko & Co. Advocates