Magare Gikenyi J. Benjamin v Independent Electoral Committee (IEC) & 18 others; Kahura Mundia & 17 others (Interested Parties) [2021] KEELRC 1443 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed a doctor's attempt to halt KMPDU elections, ruling union election disputes belong under the Labour Relations Act, not constitutional petitions.
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 interim and conservatory orders sought suspending the KMPDU elections of 29th April, 2021 should issue
- 2.Whether the petition complied with the constitutional requirement of precision in pleading constitutional violations
- 3.Whether the 1st Respondent (the Independent Electoral Committee) is a proper party capable of being sued
- 4.Whether the draft consent reached in stakeholder meetings was binding as an order of the court
- 5.Whether the court should interfere with the conduct of the union elections scheduled for 29th April, 2021
Key legal issues
#Pleading standard in constitutional petitions
The petition was struck out for want of particularisation of constitutional violations; the disputes were ordinary trade union matters
The petitioner raised numerous grievances (register, nomination fees, voting mode) without identifying any specific constitutional rights violated. Applying Mumo Matemu v Trusted Society of Human Rights Alliance and Anarita Karimi Njeru, a petition must frame issues and rights violations with reasonable precision. The underlying dispute was a member-versus-union matter properly pursued under a memorandum of claim under section 12 of the ELRC Act and Rule 7(3) of the ELRC Procedure Rules, 2016.
Constitutional avoidance / sufficiency of statutory remedies
Trade union election disputes are governed by the Labour Relations Act and the union constitution, which provide adequate remedies
Relying on Sumayya Athmani Hassan v Paul Masinde Simidi, the court held that where the Employment Act and Labour Relations Act provide adequate remedies, a litigant cannot bypass them by filing a constitutional petition without alleging their inadequacy or seeking invalidation. Section 34(1) of the Labour Relations Act requires union elections to be conducted per the registered constitution.
Status of the 1st Respondent (IEC) as a party
The IEC, being a mere committee of the union, has no legal persona and was wrongly enjoined
The IEC was constituted under Article IX of the union's constitution merely to prepare and conduct elections. It is not an entity capable of suing or being sued in its own name. The petitioner should have removed it from the proceedings once the objection was raised, and its continued joinder exposed the union to unnecessary legal costs.
Effect of an unadopted draft consent
A draft consent not signed by all parties and not adopted by the court has no bearing on the suit
Following stakeholder meetings convened by the Registrar of Trade Unions, a draft consent was prepared and reportedly agreed by all parties except the 9th Respondent. The court held that for a consent to bind the parties and affect the suit, it must be signed by all parties, filed and adopted as an order of the court. The petitioner, aware matters were resolved, should have withdrawn the petition.
Legal principles established
#- A draft consent must be signed by all parties, filed and adopted by the court before it becomes an order of the court
- A constitutional petition must plead with reasonable precision the specific constitutional provisions violated
- Where legislation provides adequate remedies, a litigant may not found a cause of action directly on the Constitution without challenging that legislation
- No suit lies against a party without legal persona
Court orders
#- 1.The petition and the Notice of Motion dated 24th March, 2021 were dismissed
- 2.The 2nd Respondent was declared at liberty to hold elections as scheduled for 29th April, 2021 pursuant to the Union Constitution
- 3.Costs awarded to the 2nd, 4th to the 15th Respondents
- 4.The interested parties 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(1), 23(a) and 159 of the Constitution of Kenya, 2010
Relief refused
#Suspension of elections scheduled for 29th April, 2021 and all conservatory orders staying the 1st Respondent's decisions of 9th and 13th March, 2021
The petition lacked particularisation of constitutional violations and should have been pursued under ordinary employment/labour procedures; the court found no reason to interfere with the election process
Orders barring nomination fees and nomination signature requirements
Eligibility to vie or vote is regulated by the union's constitution and the Labour Relations Act
Relief against the 1st Respondent (IEC)
The IEC is a mere committee of the union with no legal persona and cannot be sued
Costs
Costs awarded to the 2nd, 4th to the 15th Respondents; the interested parties 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 draft consent or a consent dealing with a matter before court must be signed by all parties to it, filed and addressed by the court for adoption as an order of the court.
Without particularising any constitutional violations or a threat of any constitutional violation, the petition should be struck out.
this is not an entity under its own legal title which can sue or be sued
Accordingly, the petition and the motion therefrom are hereby dismissed. The 2 nd Respondent is at liberty to hold elections as scheduled for 29th April, 2021 pursuant to the Union Constitution.
Costs herein awarded to the 2 nd, 4th to the 15th Respondents. The interested parties shall bear own costs.
Issues in the judgment
#The prayer for conservatory orders refers to tender 'Ref: IES/PQ/1/2021' while the body refers to 'REQUEST for prequalification tender IEC/PQ/1/2021'; the tender reference is inconsistently stated within the judgment
The judgment refers to a circular of '13th March 2013' where the context indicates 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magare Gikenyi J. Benjamin v Independent Electoral Committee (IEC) & 18 others; Kahura Mundia & 17 others (Interested Parties) [2021] KEELRC 1443 (KLR)", Case Analysis (2021). Not stated in the excerpt (Constitutional Petition and Notice of Motion dated 24th March, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1443/eng@2021-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.