Partick Njuguna & 7 others v Wilson Sossion & 3 others [2019] KEELRC 727 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court ruled that an MP can lawfully serve as a trade union secretary general unless someone proves a real conflict of interest.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Constitution prohibits the 1st respondent from contemporaneously holding the office of nominated Member of Parliament and Secretary General of the 2nd respondent
- 2.Whether the petitioners have been prejudiced by the 1st respondent holding both positions
- 3.Whether this court is the correct avenue for the petitioners to seek redress and whether the petition is premature
- 4.Whether the petitioners are entitled to the orders sought
Key legal issues
#Whether the Constitution bars a nominated MP from simultaneously holding the office of Secretary General of a trade union
No. Articles 75, 77 and 260 and section 26 of the Leadership and Integrity Act do not bar an MP from holding union office; petitioners failed to prove incompatibility, impairment of judgment or conflict of interest.
The court read Articles 75 and 77 together with section 26 of the Leadership and Integrity Act and held the provisions make two separate propositions: avoidance of conflict, and prohibition of other gainful employment for full-time state officers. The petitioners bore the burden of proving the 1st respondent was a full-time state officer barred from other employment or that the dual roles created a statutory conflict. Adopting prior authorities, the court found MPs are not necessarily full-time state officers and that the exceptions were not proved.
Whether Robert Nyabuto Nyabwocha applies
Distinguished. That case concerned a full-time Assistant National Treasurer who was contesting an elective parliamentary seat; the circumstances here differ.
The court noted that in Nyabwocha the union position in question was Assistant National Treasurer, which the judge there found to be a full-time job and custodian of union funds, and the individual was vying for an elective seat requiring campaigning and constituency duties. Here the 1st respondent was a nominated MP representing special interests of workers, did not campaign or hold a constituency, and KNUT's ADC had ratified his nomination. The Labour Relations Act also treats the Secretary General's office differently from that of a Treasurer.
Whether the court lacked jurisdiction under the doctrine of exhaustion of remedies
The objection was dismissed; the argument, even if raised properly, would not have succeeded as one petition was the more efficient forum.
The 4th respondent argued the petitioners should have first gone to the IEBC, the Committee of Powers and Privileges, or lodged complaints under sections 42 and 43 of the Leadership and Integrity Act and section 62 of the Labour Relations Act. The court held the jurisdictional issue should have been raised as a preliminary point at the outset, and that even then it would have failed because requiring multiple complaints in different fora would be less efficient than a single petition where all issues are addressed together.
Whether the petitioners proved prejudice
No. The evidence was largely newspaper articles of little probative value and no prejudice was demonstrated.
The petitioners' supplementary affidavit relied mainly on newspaper articles which the 1st respondent contended were opinions of journalists with little or no probative value. The petitioners also did not explain why they did not appeal against the ADC decision ratifying the nomination. The court found the matters deponed to did not disclose any prejudice suffered by the petitioners from the 1st respondent holding both positions.
Legal principles established
#- A Member of Parliament is not barred from holding the office of secretary general of a trade union merely by virtue of being a state officer; the bar in Article 77(1) and section 26 of the Leadership and Integrity Act applies only to full-time state officers engaged in gainful employment that is inherently incompatible, impairs judgment or creates a conflict of interest
- The burden lies on the petitioner to prove incompatibility, impairment of judgment or conflict of interest where an MP holds another position
- Section 31(4)(a) of the Labour Relations Act permits a general secretary of a trade union to be a person not engaged or employed in the sector concerned, distinguishing the office from that of a treasurer
Court orders
#- 1.Petition No. 83 of 2017 dismissed for want of prosecution
- 2.Petition No. 26 of 2018 dismissed
- 3.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 165 and 260 of the Constitution of Kenya, 2010 (constitutional petition for enforcement/interpretation)
- Consolidated with
- Petition No. 26 of 2018
Relief refused
#Declaration that the 1st respondent is unconstitutionally holding the position of Secretary General of KNUT and unlawfully holding two full-time jobs
Petitioners failed to prove that a Member of Parliament is barred from holding union office or that the two positions create a conflict, incompatibility or impairment of judgment under Article 77 and section 26 of the Leadership and Integrity Act
Order compelling the 1st respondent to vacate the office of Secretary General of KNUT and fresh elections to be organised
Petition dismissed; no violation of constitutional rights established
Order restraining the 1st respondent from assuming duties as Secretary General and restraining KNUT from remitting remuneration, and order surcharging him
Petitioners did not prove prejudice or violation of their constitutional rights
Costs
Each party shall bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A reading of Articles 75 and 77 of the Constitution and section 26 of the Leadership and Integrity, as well as the definition of state officer in Article 260 in my opinion do not bar a holder of the position of a member of Parliament from holding the position of secretary general of a trade union.
I thus find that the circumstances in the case of Robert Nyabuto Nyabwocha are not similar and is distinguishable from this petition and is therefore not applicable to this petition.
I would thus dismiss the arguments on jurisdiction as raised by the 4th Respondent.
Petition No. 83 of 2017 is thus dismissed for want of prosecution.
The result that the petition is dismissed.
Each party shall bear their costs.
Issues in the judgment
#The petitions are referred to inconsistently as No. 83 of 2018 and No. 83 of 2017 within the judgment
Numbering of subsections of section 26 of the Leadership and Integrity Act is misprinted as (3) and (4), and Article 75 numbering appears as 75(2) in places where the quoted text shows 75(1)
Petition No. 26 misdated as '2081' in the Registrar's grounds of opposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Partick Njuguna & 7 others v Wilson Sossion & 3 others [2019] KEELRC 727 (KLR)", Case Analysis (2019). Petition No. 83 of 2017 (consolidated with Petition No. 26 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/727/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.