[2015] KEELRC 826 (KLR)
The court found that Article 21 of the Union's Constitution places the obligation to initiate alternative dispute resolution on the Union itself, not on individual members or officials. The evidence showed that the Claimant had made efforts to resolve the dispute internally, including involving the Area Office,...
Source-derived case information.
- Citation
- [2015] KEELRC 826 (KLR)
- Parties
- Claimant: Suleiman Mohamed Abdala; Respondent: Kenya County Government Workers Union, Mombasa Branch; Respondent: Fatiya Kombo; Respondent: Rashid Muteti Musomba; Respondent: Registrar of Trade Unions
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 52 of 2015
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection declined
- Legal Topics
- Trade Union Disputes, Internal Dispute Resolution, Prematurity of Claim, Union Constitution Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Mohamed Abdala
Claimant
Kenya County Government Workers Union, Mombasa Branch
Respondent
Fatiya Kombo
Respondent
Rashid Muteti Musomba
Respondent
Registrar of Trade Unions
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim was filed prematurely before exhausting internal dispute resolution mechanisms under the Union Constitution.
- 2 Whether the Union Constitution bars the filing of the claim before resorting to alternative dispute resolution.
- 3 Whether the preliminary objection should result in striking out or staying the proceedings.
Ratio Decidendi
The court found that Article 21 of the Union's Constitution places the obligation to initiate alternative dispute resolution on the Union itself, not on individual members or officials. The evidence showed that the Claimant had made efforts to resolve the dispute internally, including involving the Area Office, which advised the Branch to settle the matter. The Respondents ignored this advice and did not attempt voluntary settlement. Therefore, the claim was not premature, and even if it were, the appropriate remedy would be to stay the proceedings to allow for settlement, not to strike out the claim. The preliminary objection was found to be made in bad faith and was declined.
Court Disposition
preliminary objection declined
Orders
- The Preliminary Objection is declined.
- Parties to schedule the main dispute for hearing.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NUMBER 52 OF 2015
BETWEEN
SULEIMAN MOHAMED ABDALA…….........…CLAIMANT
VERSUS
1. KENYA COUNTY GOVERNMENT WORKERS
UNION, MOMBASA BRANCH
2. FATIYA KOMBO
3. RASHID MUTETI MUSOMBA
4. REGISTRAR OF TRADE UNIONS ..........RESPONDENTS
RULING
1. The Claimant is the Chairman of the 1st Respondent. An extract of the Register of Officers and Officials of the Trade Union from the Registrar of Trade Unions, describes him as such. The 2nd and 3rd Respondents are respectively Treasurer and Secretary of the 1st Respondent. The Claimant initiated this Claim on 9th February 2015. He claims from April 2014, the Respondents refused to pay him his monthly allowances. He seeks the arrears of his allowances to-date.
2. The Respondents filed a Notice of Preliminary Objection, which is the subject of today’s ruling. They state that the Claim was filed prematurely. They cite Article 21 of the Union’s Constitution, which requires that whenever conflicts among Members, Officers and Officials occur, the Union must endeavour to resolve them through the alternative dispute resolution mechanisms.The Claimant has not exhausted the internal mechanisms, and his Claim is therefore premature and should be struck off with costs to the Respondents.
3. Parties agreed the Objection be considered and determined on the strength of their Submissions on record.
The Court Finds:
4. Article 21 above appears to suggest it is the Union, not the Members, Officials or Officers, which must endeavour to resolve conflicts through the voluntary dispute resolution mechanisms. The Union has not shown that it has initiated such mechanisms, or endeavoured to resolve the dispute through such mechanisms, before or during the subsistence of the Claim.
5. There are letters attached to the Claim indicating the Claimant attempted to have the dispute settled before he filed the Claim. He approached the Union’s Area Office on several occasions. The Area Office wrote to the Branch Secretary on 6th February 2015, advising the Branch to settle the Claim, ‘’never allowing the Branch to be charged in Court…’’The Respondents ignored the advice and did nothing to endeavour voluntary settlement.
6. The Union’s Constitution is not violated by the filing of the Claim. Even if the Claim is premature, the Respondents should not be asking the Court to strike out the Claim; they should be asking the Court to stay its proceedings, to allow them settle, as advised by the Area Office. Honesty and fair dealing demand they seek time to negotiate, not ask the Court to strike out the Claim. The filing of the Claim does not bar the resort to alternative dispute resolution mechanism.
7. The Preliminary Objection seems to have been made in bad faith.
IT IS ORDERED: -
[a] The Preliminary Objection is declined.
[b] Parties to schedule the main dispute for hearing.
[c] If the Parties wish to pursue voluntary settlement under their Constitution, they may still do so before the Court Hearing.
[d] No order on the costs.
Dated and delivered at Mombasa this 3rd day of July 2015.
James Rika
Judge