[2018] KEELRC 2054 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO 540 OF 2014

(Before Hon. Lady Justice Maureen Onyango)

WILLIAM MUGA AKETCH..................................................CLAIMANT

-VERSUS-

TAILORS AND TEXTILES WORKERS’ UNION..........RESPONDENT

JUDGMENT

Vide statement of claim dated and filed on 3rd April 2014, the claimant seeks the following orders against the respondent –

a) Kshs.1,214,125. 00

b) Costs

c) Interest in (a) and (b) above at court rates until payment in full.

d) Any other relief as this court may deem just and fair to grant.

The respondent filed a memorandum of reply denying the averments in the statement of claim.

By consent of the parties the case was disposed off by way of written submissions.

Background

The claimant William Muga Aketch is a former Secretary General of the respondent, Tailors and Textiles Workers’’ Union. He was elected into office on 15th June 2002 and re-elected into office in 2006. Both elections were for 5 year terms. The second term was to expire in 2011.

However in 2009 the claimant was removed from office and the Registrar of Trade Unions advised through a notice of Change of Names or Titles of Officers/Officials (Form Q of the Labour Relations Court Act). The Registrar acted on the Form Q and effected the changes as advised. On 30th and 31st December 2009, the respondent placed an advertisement of the removal of the claimant in the Daily Newspaper.

The claimant was aggrieved by his removal and upon confirming the changes with the Registrar of Trade Unions, filed a complaint against the respondent with the Registrar. According to the claimant, the Registrar advised the respondent to reinstate the claimant but the respondent failed to comply. The claimant thereafter filed Industrial Court Cause No. 3N of 2010. The case was heard and determined on 1st November 2010 when the court read its award in favour of the claimant in the following terms –

1. It is hereby declared that the National Executive Committee meeting held on 30th December 2009 was improperly convened and appointments made thereat were improper and illegal ab initio.

2. The first respondent is hereby ordered to immediately de-register the notice of change of officers of the second respondent as contained in Form Q filed following the NEC meeting of 30th December 2009 and that the status quo before the notice was filed be maintained an the claimant be reinstated as the Secretary General of the second respondent without loss of benefits.

3. We further order that the claimant shall continue to hold the position of Secretary General of the second respondent without any interruption, up to and including the 31st December 2011 after which the second respondent may conduct elections with respect to the position of Secretary General and in accordance with its registered constitution.

4. Each party will bear its own costs.

The Secretary General of the respond was dissatisfied and field JR. Misc. Civil Application No. 327 of 2010 in the High Court at Milimani Law Courts. In the JR Misc. Application the respondent sought the following prayers –

(1) That the court be pleased to grant an order of certiorari to bring into this court and quash the decision of the Hon. Judge of the Industrial Court (Hon. Rika J.) dated 1st November 2010 in Cause No. 3(N) of 2010.

(2) That the court be pleased to grant an order of a mandamus directed at the Registrar of Trade Unions not to deregister the notice of change of the Tailors &Textiles Workers Union as contained in Form Q flowing the award of the Industrial Court of 1st November 2010.

(3) That costs of the application be provided for.

Although in the judgment the court found that the applicant was entitled to an order of certiorari to quash Order No. 3 of the award in Cause No. 3N of 2010 delivered on 1st November 2010, it nevertheless found that the term of office of the claimant herein expired on 31st December 2011 and the term created by the order reinstating the claimant as Secretary General had expired as at the date of the judgment on 18th June 2012 meaning that the orders were no longer in force “and issuing order of certiorari to quash them will not serve any useful purpose. As a given rule, courts of law do not issue orders in vain or orders which are incapable of enforcement.”

The final determination of the court was that –

“In the end, I have come to the conclusion that the applicant’s notice of motion dated 8th November 2010 lacks merit and it is hereby dismissed.”

It is under these circumstances that the present claim was filed.

Claimant’s Submissions

It is the claimant’s submissions that the effect of the judgment in Misc. Application no. 237 of 2010 is that even though the Judge did not agree with Order No. 3 in the Award in Cause No. 3N of 2010 dated 1st November 2010, it did not set aside the order and the orders was therefore in effect and the claimant is entitled to the benefits under the award.

It is submitted that the Secretary General of the respondent further field Petition No. 26 of 2012 in which the court reiterated that it could not quash the orders in Cause No. 3N of 2010 as the said orders were already spent. The claimant submits in summary that –

a) The meeting held on 30th December 2009 where the claimant was removed from his employment position was improper

b) The claimant was removed from his position without being given notice to show cause why he should not be removed thus he was not given an opportunity defend himself and he was not informed of the reason for his removal.

c) The claimant was not paid his terminal dues upon his termination for the remaining period when he was supposed to be in office.

d) The claimant was never reinstated to his positon as ordered by the court in Cause 3N of 2001 and the respondent is liable to pay his loss of benefits for the period between December 2009 and December 2011.

e) The court orders nullifying the notice of change of officers emanating from the improper meeting held on 30th December 2009 and reinstating the claimant were never set aside in any proceedings before a court of competent jurisdiction;

f) The respondent never complied with the directive of the Registrar of Trade Unions to conduct a proper hearing for the removal of the claimant but instead continued to file more suits and which were all dismissed;

g) The legality or illegality of order No. 3 in Justice Rika’s judgment had no effect on the order of reinstatement.

h) The non-compliance of the Registrar of Trade Unions or the respondent with the court orders in 3N of 2010 to reinstate the claimant in fact entitled the claimant to loss of his benefits hence this claim as opposed to the opposite as wrongfully interpreted by the respondent at paragraph 12 and 13 of their response.

i) The claimant’s termination was indeed unlawful and unfair.

It is on these grounds that the claimant submits he is entitled to the prayers sought as follows –

i. Salary & House Allowance December 2009 = 39,500 + 5,925

January 2010 – December 2010 = 12(39,500 + 5. 925)

January 2011 – December 2011 = 12(39,500 + 5,925)

1,135,625

ii. Leave allowance 2009 39,500

2010 39,500

70,000

The claimant further prays for maximum compensation of 12 months salary for unlawful termination of service and for costs.

Respondent’s Submissions

The respondent submits that the claimant was lawfully removed from office as Secretary General of the respondent on 9th December 2009, that the removal was effected by the Registrar of Trade Unions on 7th January 2010 and he did not perform any duties for the respondent thereafter.

It submits that having not rendered any services to the respondent, he is not entitled to any payment for the period December 2009 to December 2004.

Determination

This is a matter that has been litigated in four previous suits being Industrial Court Cause No. 3N of 2001, JR. Misc. Civil Application No. 327 of 2010 (Milimani), Petition No. 26 of 2012 and JR. No. 255 of 2012.

All the determinations were in favour of the claimant as the award in Cause No. 3N of 2010 was not set aside in all the subsequent suits. That decision remains valid to date. The suit herein is in actual fact a bid by the claimant to enforce the award of the court in 3N of 2010.

The award having not been set aside, stayed or varied the only issue for determination is whether the claimant is entitled to the benefits of the award.

The respondent did not obtain any orders of stay against the award in Cause 3N of 2010 but at the same time did not comply with the same. By agreeing with the respondent’s positon, this court would be sanctioning disobedience of a court award that has not been successfully challenged. The court would thus be promoting the disobedience of its own orders.

As stated in the judgment of Justice Githua in JR Misc. Application No. 327 of 2010 as a general rule, courts of law do not issue orders in vain or orders which are incapable to enforcement. It is the duty of this court to enforce orders of any court that have not been set aside. This court is therefore obliged to enforce the ward in Cause 3N of 2010.

The orders were that the claimant was reinstated to his position of Secretary General to continue in the office without interruption up to 31st December 2011.

The respondent did not contest the figures prayed for in the claim and I can only presume that they are correct. For these reasons I enter judgment for the claimant against the respondent in the sum of Kshs.1,214,125 as particularised under paragraph 24 of the statement of claim.

The prayer for compensation is rejected as it is made in the submissions and was not prayed for in the claim.

The respondent shall pay claimant’s costs of this suit and the decretal sum shall be subject to interest at court rates from date of judgment.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 11TH DAY OF MAY 2018

MAUREEN ONYANGO

JUDGE