1. By a Notice of Motion filed on 1st March, 2023 the applicant sought orders among others that:
a) An order of prohibition do issue restraining the respondent from continuing to refuse to register changes of the applicant union’s office structure made at its NEC as contained in the duly filled form Q dated 9th July, 2022
b) An order of mandamus to compel the respondent and or its agents and or servants to register the changes to the union officials of the applicant as contained in the duly filled form Q dated 9th July, 2022.
2. The application was supported by statutory statement and verifying affidavit of Elijah Otieno Awach in which he deponed among others that:
(i.) THAT I am the General Secretary of the Kenya Union of Water and Sewerage Employees (formerly National Union of Water and Sewerage Employees) therefore competent to swear this Affidavit.
(ii.) THAT the Applicant is a Registered Trade Union with membership numbering about 3,000 members within the water sector throughout the Republic of Kenya and in held its last elections in the year 2021 when the current officials were elected.
(iii.) THAT the applicant had a NEC meeting in Tom Mboya Labour College, Kisumu, on 9th July 2022, which meeting I properly convened as the authorized officer of the applicant in which the interested party was removed as a Deputy Secretary General of the Applicant union and I presented a form ’Q” upon the 1st Respondent for registration of changes and paid the requisite fees of kshs.3,000.
(iv.) THAT the Respondent has to date intentionally and or deliberately failed, ignored and/or refused and or declined to communicate her decision and or effect the changes made by the Applicant and contained in form Q presented on 12th July 2022
(v.) THAT I, as the Authorized officer of the Applicant have severally visited the Respondent’s offices as a follow up to have a new extract as per the changes it made on the 9th July 2022 but in vain.
(vi.) THAT no reason/s has been advanced to the applicant for not effecting the said changes, a fair capability process has been violated and the provisions of the Labour Relations Act 2007 and Fair Administrative Action Act which provides that every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.
(vii.) THAT the decision of the Respondent to refuse to effect changes in the union structure has caused the interested party to remain an official of the Applicant union which position has enabled him to sabotage the union by filing several similar cases meant to ground the union.
(viii.) THAT the interested party has several cases pending before this honourable Court being causes number E479 of 2022 and E291 of 2022 with similar issues where as the of stopping the NEC meeting held on 9th July 2022 at Tom Mboya Labour college in Kisumu, which Orders were not granted by the court and later on the application was withdrawn and to date no action and or activities in the said file and the one in E291 of 2022, the court issued a N.T.S.C coming on 26th April 2023 why the same should not be dismissed.
(ix.) THAT the interested party subsequently lodged a false and malicious complaint against me with the Directorate of Criminal Investigations to incriminate me and the DCI filed a Misc. Criminal Application at Chief Magistrate Court at Milimani Nairobi being CMCC Misc. Criminal Application Number E 152 of 2023 and obtained orders freezing the applicant’s Bank Account on 18th January 2023 for a period of 45 days resulting into the Applicant union being completely paralyzed and grounded to a halt..
(x.) THAT the act granting the interested party locus to sue the union to the extent of obtaining orders to freeze the union accounts emanates from the decision of the Respondent of refusing to register changes proposed in form °Q” and thereby retaining as an official of the Applicant almost one year since he was removed from office by the Applicant’s NEC.
(xi.) THAT to my knowledge the applicant Union cannot sustain its self as it is unable to pay salaries and allowances to its officials and employees, pay office rents and even filing of disputes in court as well as filing annual returns with the registrar of trade unions and the applicant stands to continue suffering as a result of the respondent retaining the interested party in the applicant’s extract. The applicant union risks being sued for lack of payment of salaries and allowances.
(xii.) THAT the Respondent’s action was in violation of the Labour Relations Act 2007 which gives her Mandate to discharge her duties within a specific time shall be dealt with reasonably, efficiently, effectively, lawfully and in a procedurally fair manner whereas the applicant was denied a fair administrative action.
3. The respondent filed a replying affidavit through one Beatrice Mathenge who deponed among others that:
i.) THAT I am the Acting Registrar of Trade Unions in the State Department for Labour and Skills Development. I have full knowledge and information concerning this matter and competent to depone to this Replying Affidavit.
ii.) THAT I have read the Applicant's Notice of Motion Application dated 1st March, 2023 and wish to respond as follows.
iii.) THAT the mandate of the Respondent is the registration and regulation of trade unions, employers’ organizations and federations.
iv.) THAT it is true that on 12th July 2022 the Office of the Registrar of Trade Unions received an Application for Change of Officials (Form Q) from the deponent on behalf of the Ex-parte applicant.
v.) THAT I was appointed to act as the Registrar pending recruitment of a substantive office holder in September 2022.
vi.) THAT I reported for duty on 19th September 2022.
vii.) THAT although the Office of the Registrar of Trade Unions has an approved establishment of 9 Registrars there is no other Registrar that has been recruited apart from the former Registrar.
viii.) THAT I was unable to process with the registration of the change of officials as it was brought to my attention that the meeting of 9th July from which the aforesaid change emanated from had been challenged in Court in Nairobi ELRC No. E479/2022 Kenya Union of Water & Sewerage Employees (KUWASE) & 7 Others -vs- Elijah Otieno Awach & the Registrar of Trade Unions.
ix.) THAT the above case is still pending and is yet to be determined and it is only the application that has been withdrawn.
x.) THAT the effect of change was to inter alia remove the Interested Party from his position as the National Deputy General Secretary of the Union and who is the 3rd Claimant in Nairobi ELRC No. 479/2022 aforesaid.
xi.) THAT the Interested Party and other Union officials have in their claim in Nairobi ELRC No. 479/2022 alleged that the deponent who is the National General Secretary of the Union has misconducted himself and mismanaged the Union's affairs and funds.
xii.) THAT as a result the Claimants in the said case allege to have held a National Executive Committee Meeting on 14th March 2022 and resolved to suspend the deponent as the National General Secretary.
xiii.) THAT there is a lot of wrangling between the Union officials at the National level and this application has been filed specifically to have the Deputy General Secretary removed from his position as he had led a faction of the officials in suspending the deponent as the National General Secretary on 14th March 2022.
xiv.) THAT in the circumstances, it would not have been prudent to register the change as this would be sub judice and further it is not possible to predict the decision of the Court in the above case.
xv.) THAT the Respondent is not aware of the existence as well as the current position of Nairobi ELRC No.4792022 BUT FROM THE Notice of Motion the Claimants are challenging the NEC meeting held on 9th July 2022 from which the notice of change of officials emanates from.
xvi.) THAT I have carefully perused the registered constitution of the Union and have confirmed that the constitution does not contain a provision on removal of officials.
xvii.) THAT this is contrary to the provisions of section 14(1) of the Labour Relations Act and clause 4 of the First Schedule made under the Act
xviii.) THAT the aforesaid provisions are mandatory and without the said provisions it would not be possible for the Respondent to confirm whether the removal of the Interested Party was in accordance with the constitution of the Union or not.
xix.) THAT in the circumstances, the Notice of Change of Officials (Form Q) dated 12 July 2022 cannot be registered as the same would be against the provisions of the Labour Relations Act.
xx.) THAT further on 27th February 2023 the Respondent received an objection to the registration of change of officials made on 9th July from the Interested Party.
xxi.) THAT section 35(3) of the Labour Relations Act requires the Respondent where an objection has been made to an application for change of officials to conduct an inquiry and may seek for production of evidence of the change.
xxii.) THAT in his objection, the Interested Party states that the minutes of the meeting held on 9th July 2022 are a forgery as no such meeting took place.
xxiii.) THAT consequently it would be necessary for the Respondent to carry out an inquiry and also seek for relevant evidence in support of the change before making a decision as to whether the change of officials should be registered or not and as provided under section 35 of the Act.
xxiv.) THAT there has been continuous wrangling between the national officials of the Union and as a result there are several cases filed in the Employment and Labour Relations Court relating to these wrangles.
xxv.) THAT the Respondent has received various complaints against the deponent in his position as the National General Secretary of the Union relating to forgery, misconduct and misappropriation of Union’s funds.
xxvi.) THAT sometimes in December 2022 and January 2023, the Respondent learnt that the Director of Criminal Investigation (DCI) Nairobi Region was conducting investigations relating to the offence of conspiracy to defraud and forgery in relation to the Union.
xxvii.) THAT this has been confirmed by the deponent in his supporting affidavit at paragraph 14 and the annexures to the affidavit being an order, a notice of motion filed at Nairobi Milimani Chief Magistrate Misc Criminal Appl. No. E152/2023.
xxviii.) THAT in his supporting affidavit Chief Inspector Kokeno has stated that the matter under investigation was reported by Ahmed Bashir and George Olwalo the National Chairman and National Deputy Secretary of the Union respectively.
xxix.) THAT the National Deputy General Secretary is the interested party herein.
xxx.) THAT after investigations, the deponent was on 7* March 2023 charged with the offence of forgery and altering a false document before Hon. E. Kimilu Senior Principal Magistrate in Criminal Case No. E162/2023 Republic vs Elijah Otieno Awach.
xxxi.) 32. THAT in granting the deponent bail, the Court directed the deponent who is the National General Secretary of the Union not to interfere with the Union activities and intended prosecution witnesses.
xxxii.) THAT these proceedings were filed on 1st March 2023 after the deponent had been arrested on 23rd February 2023 and was awaiting arraignment in Court to answer the aforesaid charges.
xxxiii.) THAT these proceedings were therefore filed to frustrate the criminal proceedings that were to be preferred against the deponent and/or interfere with the ongoing criminal investigations against him.
xxxiv.) THAT after the deponent was charged in the said criminal case the Interested Party and other national officials of the Union convened a NEC meeting on 11 March 2023 where it was resolved inter alia that the deponent be suspended as the General Secretary and the Interested Party acts as the General Secretary of the Union.
xxxv.) THAT on 13th March 2023 the Interested Party presented a Notice of Change of Officials (Form Q) for registration containing the said changes.
xxxvi.) THAT on 15* March 2023 the deponent as the National General Secretary and the National Treasurer objected to the registration of the aforesaid changes.
xxxvii.) THAT as a regulator and having received complaints of misappropriation of funds of the Union the Respondent is also taking action as provided under section 46 and 47 of the Labour Relations Act, 2007.
xxxviii.) THAT granting the orders sought in the application would interfere with the prosecution of the pending criminal case against the deponent as well as the regulatory mandate of the Respondent provided for under the Act.
4. The interested party filed a replying affidavit on 13th October, 2023 in which he stated among others that:
a. I am a male adult of sound mind and the dully Acting General Secretary of the Kenya Union of Water and Sewerage Employees (hereinafter, "the Union"). I am well versed with the facts of the Judicial Review Application no EPOS of 2023 and the instant Application both purportedly filed on of the Union together with their annexures filed therewith, therefore competent to swear this Affidavit.
b. I am aware that the purported Applicant's Application is premised on the alleged failure to effect changes of leadership in the union following a purported illegal NEC meeting on 9th July, 2021 and subsequent change of the Union's bank signatories which allegedly led to loss of the Union's finances.
c. I am aware that the Constitution, Rules and Regulations of the Union empowers the National Executive Council of the Union to suspend and/or expel a member or an official of the Union.
d. I am further aware that the National Executive Council of the Union is responsible for the management of the affairs of the union, and SHALL exercise control over the individual officials and employees of the union.
e. Additionally, I am aware that Rule 7 of the Constitution, Rules and Regulation of the Union provides that any member of the Governing Council may be removed from office on direction from the National Executive Council.
f. Against this backdrop, following massive allegations of mismanagement of the Union's affairs and funds by Elijah Otieno Awach, (hereinafter, "the Applicant"), the National Executive Council embarked and/or set in motion disciplinary proceedings against the then General Secretary as envisaged in the Union's Constitution.
g. For particularity, the Mr. Elijah Awach was accused of forgery having forged with intent to defraud the Union, a signature on National Executive Committee minutes purporting it to have been signed by Ahmed Bashir Mohammed.
h. Accordingly, on 21st February, 2022 the National Executive Committee notified Mr. Elijah AxWach on tire need to convene a meeting of the National Executive Committee vide a letter dated 21st February, 2022.
i. Additionally, I am aware that the Applicant was further informed and notified of the planned meeting of the National Executive Council on 1411' March 2022 through a letter dated 7th March, 2022.
j. Subsequently, on 14th March, 2022 the National Executive Council proceeded to convene a meeting wherein a resolution to suspend Elijah Owach was made pending investigation of his misconduct. It is noteworthy that Mr. Elijah Owich was absent in the meeting without apology despite being accorder sufficient prior notices.
k. Consequently, the National Executive Council proceeded to notify the Registrar of the Trade Union of the Resolution passed by the Council on 14th March 2022 to effect the requisite changes per the attached form Q vide a letter dated 15th March, 2022.
l. Subsequently, the Union elected the Interested Party as the acting General Secretary of the Union and subsequently notified the Registrar of the Union to effect the said changes as resolved by the National Executive Council. (Reference is made to
m. However, the Registrar of the Union failed without reasons, to act on the said letter technically and illegally allowing the expelled General Secretary to run the affairs of the Union.
n. I am aware that on 7th March 2023, one Mr. Elijah Otieno Awach was charged with two offences, namely, forgery contrary to Section 345 as read with Section 349 of the Penal Code and uttering false document having knowingly and with intent to defraud, forged various documents on diverse dates to embezzle the Union's funds.
o. 20. On the said date, there was plea taking where upon request, Mr. Elijah Awach was granted conditional bail with the following terms; that the accused person be released on a cash bail of Kshs. 200,000.00; and that the accused person does not interfere with the Union's activities and intended prosecution witnesses.
p. However, against the above bail terms, the accused person, in a clandestine manner, continued to advance his nefarious schemes aimed at defrauding the Union by interfering with the Union's management and the intended prosecution witness, one Mr. George Olwalo.
5. The applicant and the interested party both filed submissions however the respondent informed that Court that it was relying on the replying affidavit. In his submissions in support of for the orders sought, the applicant submitted among others that the action by the respondent of not effecting changes in Form Q dated 9th July, 2022 which removed the interested party as Deputy Secretary General violated the principles of good governance and fair administration which amounted to abuse of office as the applicant’s rights were gravely violated by the respondent refusing to honour the union’s registered constitution and the law. According to the applicant, the respondent erred in law and violated the constitution of the applicant and refusal to communicate in writing to the applicant the reasons why it declined or refused to register the Form Q dated 9th July, 2022 was an open abuse of office.
6. The interested party on its part submitted among others that the constitution, rules and regulations governing the applicant Union, empowers the National Executive Council (NEC) of the union to suspend or expel a member or an official of the Union. The NEC was responsible for the management of the affairs of the union and exercised control over individual officials and employees of the union.
7. It was against the above background, following allegations of massive mismanagement of the union’s affairs and funds by the applicant (Elijah Awach) that he was expelled as the General Secretary. The NEC set in motion disciplinary proceedings against Mr. Awach that culminated to his suspension, which he submitted was in accordance with the union’s constitution. The interested party emphasized that Mr. Awach was facing criminal charges at Milimani Court in Criminal case No. E162 of 2023 where he was accused of forgery. That is to say, having forged with intent to defraud the union, a signature on the NEC minutes purporting it to have been signed by Mr. Ahmed Bashir Mohammed, the Chairperson of the Union.
8. According to Counsel the instant application sought an ordinary interpretation of the Labour Relations Act specifically whether the Registrar can refuse to register change of the union’s officials as envisaged under section 35(4) of the Act. That section was emphatic that if after inquiry, the Registrar is not satisfied as to the validity of any appointment or propriety of any proposed correction, my refuse to register the change of officials or correct the register.
9. According to the Interested Party, the Registrar’s refusal was informed by among others:
a. The purported (NEC) meeting that led to the resolution was invalid ab initio having been conducted in sheer disregard of the union’s constitution.
b. The Union had since then removed Mr. Awach as the Secretary General and replaced him with the interested party
c. Mr. Awach had been accused of fraud and embezzlement of the Union funds and was stopped by the criminal court from interfering with the union’s activities.
10. Counsel further submitted that Judicial Review Orders being discretionary in nature the Court should be guided by the case of Republic vs. County Government of Mombasa & another ex parte Clement Muturi Kigano [2018] eKLR.
11. In the instant case the respondent issued reasons for inaction in effecting the changes submitted by Mr. Awach and further there were mechanisms for addressing the reservation. The applicant therefore did not merit the orders sought.
12. The Court would like to observe that this matter presents the now common and vicious wrangling typical in some trade unions. The several affidavits and counter-affidavits filed herein demonstrate the viciousness of the contestation between the main protagonists. It is regrettable that as the union officials embroil themselves in wrangling, service to members become extremely compromised.
13. The genesis of this matter is that sometimes in February, 2022 the team led by the Interested Party accused the applicant of mismanagement of the Union's affairs and funds and consequently purported to call a NEC meeting in which a resolution was passed to suspend the applicant and replace him with the Interested Party in acting capacity. The alleged changes were presented to the respondent who did not effect the same since the applicant raised an objection.
14. The applicant on the other hand purported to call a NEC meeting at Tom Mboya Labour College in Kisumu on 9th July, 2022 at which a resolution was allegedly passed to remove the Interested Party as the Deputy General Secretary. The applicant too, duly submitted form Q to the respondent to effect the changes but this too was not acted upon by the respondent since the Interested Party lodged an objection. So as things stand now the union officials elected on 11th February, 2021 remain the bona fide officials. This includes the applicant as General Secretary and the Interested Party as the Deputy General Secretary.
15. Rule 8 of the union’s registered constitution empowers the NEC as the body responsible for the management of the affairs of the union and grants it power to exercise control over individual officials and employees of the union. Further, all the decisions of NEC shall be binding on each of its officials, members and employees, provided that any decision taken that directly affects the rights or privileges of a member shall be appealable within 30 days of such decision to the next Governing Council meeting.
16. The Governing Council on the other hand can remove any member from office by a majority decision or on direction from the National Executive Council. Further the Governing Council has power to appoint one of its members to fill a vacancy created by the removal of a member. From the forgoing it is clear that the union’s constitution contains mechanisms for disciplinary control over its members including members of NEC and Governing Council. However, the NEC does not seem to have power of discipline or removing a member from office. That power seems to be only with the Governing Council. The NEC can only direct the Governing Council to remove a member. However, such member has the right of appeal to the Governing Council within 30 days of such decision.
17. From the material tabled before me, none of the protagonists namely the applicant or the interested party, has demonstrated that they challenged their removal using the internal dispute resolution mechanisms contained in the union’s constitution.
18. This Court in exercise of its jurisdiction under article 159 of the Constitution is required to encourage parties to explore alternative dispute resolution mechanism prior to presenting their disputes for determination by the court. It is strongly believed that disputes resolved through ADR preserve and sustain relationships more than a determination by a court of law. Besides under the principle of exhaustion as was stated in the case of Speaker of National Assembly v Karume [1992] KECA 42, where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law or regulations ought to be adhered to since there are good reasons for such special procedures. The Court must therefore shy from being used to quickly rush in resolving disputes between parties where there are reasonable and sound dispute resolution mechanisms including traditional methods and or procedures contained in their constitutive instruments such as the provisions in the Union’s constitution referred to above.
19. In view of the observations above and if this court’s advice were to be sought, the two protagonists namely the applicant and his deputy ought to call a truce and resolve their differences in the interest of serving the union in the capacities they were elected to serve by the union members. Their nascent conflict does not augur well for the objectives for which the union was founded.
20. On the allegations of embezzlement of funds or misuse of the union’s property, these as observed can be dealt with by the Governing Council and escalated to Special Delegates Conference as provided in the union’s constitution and if proved those responsible be held to account. Besides under section 44 read together with section 46 of the Labour Relations Act, the Registrar of Trade Unions is empowered to inspect and call upon the treasurer or the executive management board to render detailed accounts of the union’s funds containing such information as the registrar may require.
21. The criminal charges against the applicant do not concern the union but it’s chairman as the complainant where the latter accuses the applicant of forging his signature in the minutes of the NEC meeting at which the Interested Party was allegedly removed. The allegations remain subject of a criminal charge and the applicant is presumed innocent until he pleads or is proved guilty of the charges. They cannot therefore be used to bar the applicant from carrying on his duties as elected.
22. In conclusion, this Court finds no reason to issue the Judicial Review Orders sought against the respondent and they are hereby declined, since the attempt by both the applicant and the interested party to change the register of elected officials did not adhere to the provisions of the union’s constitution. Therefore, the union officials as elected on 11th February, 2021 and registered by the Registrar, shall remain the bona fide officials with full powers to discharge their day to day functions as such, including operating the union’s bank accounts as mandated and in accordance with unions constitution and Labour Relations Act, until lawfully removed from office in accordance with the union’s constitution.
23. Given the nature of the dispute herein and the conclusion reached, there will be no order as to costs.
24. It is so ordered.
Dated at Nairobi this 21st day December, 2023
Delivered virtually this 21st day of December, 2023
Abuodha Nelson Jorum
Judge