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ELRCPartially AllowedNot stated in the judgment

Otieno & 37 others v Union of Kenya Civil Servants & 3 others (Petition E027 of 2023) [2024] KEELRC 99 (KLR)

Employment and Labour Relations Court
31 January 2024
RSRadido Stephen
3,094 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Members of the Union of Kenya Civil Servants, led by the Branch Secretary of the Kakamega branch, petitioned the Employment and Labour Relations Court at Kisumu against the Union and three national officials. They alleged breach of fiduciary duties, failure to remit PAYE, failure to disburse funds to branches, unauthorised expenditure, denial of the right to inspect books of account under section 44 of the Labour Relations Act and Article 25 of the Union's Constitution, and failure to convene the Advisory Council and Annual National Delegates Conference. They sought declarations that the officials were unfit to hold office, their suspension, and orders compelling a Delegates Conference within 60 days. The Respondents denied mismanagement, asserting that the Union's accounts were audited and filed with the Registrar of Trade Unions, that alleged irregularities were based on draft documents, and that the Petitioners should have first approached the Registrar. The Court held that the Respondents breached the Union's Constitution, their fiduciary duties and the Labour Relations Act by failing to make all books of account available for inspection, and gave the Petitioners relief on that head. It declined to find financial mismanagement on untested affidavit evidence, holding the National Delegates Conference the proper forum, and refused suspension of the officials since the Union's Constitution vests such powers in internal organs. Orders for the Conferences were moot as notices had been issued. The Court issued a declaration, a 15-day inspection order, liberty to raise financial management at the Delegates Conference, and costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondents breached their fiduciary duties and the Labour Relations Act and the Union's Constitution by failing to make the books of account fully available for inspection
  2. 2.Whether the Petitioners proved financial mismanagement against the Respondents
  3. 3.Whether the Respondents were in breach for failing to convene the Advisory Council and Annual National Delegates Conference
  4. 4.Whether the Petitioners are entitled to the suspension/removal of the 2nd to 4th Respondents from office
  5. 5.Whether the Respondents threatened and intimidated the Petitioners
  6. 6.Costs

Key legal issues

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01

Members' right to inspect a trade union's books of account

Holding

The Respondents breached section 44 of the Labour Relations Act, Article 25 of the Union's Constitution and their fiduciary duties by not making all requested records available

Reasoning

Section 44 of the Labour Relations Act allows any member to inspect the union's accounts as stipulated in the union's constitution. Article 25 of the Union's Constitution allows inspection on a week's notice. The 1st Petitioner gave written notice on 23 January 2023; inspection was only partially allowed, follow-up requests went unanswered, and the Respondents gave no justifiable reason for the incomplete compliance.

p. 5
02

Alleged financial mismanagement

Holding

Not proved on affidavit evidence; the proper forum is the National Delegates Conference where the audited financial statements are presented

Reasoning

The Petitioners relied on raw and draft records not approved by the Union's accountants and not subjected to interrogation in Court. The Respondents produced audited financial statements filed with the Registrar of Trade Unions. The Court held the Annual Delegates Conference, an agenda item of which is presentation and discussion of financial statements, is the opportune forum for the membership to act.

p. 6
03

Remedies of suspension and removal of union officials

Holding

Refused; internal constitutional mechanisms of the Union must first be exhausted via the delegates' conference

Reasoning

The Union's Constitution vests the power of suspension and removal of officials in defined organs. The Petitioners had not attempted to use those mechanisms and still had the opportunity to move appropriate motions at the National Delegates Conference. Orders of suspension or declarations of unfitness to hold office would therefore be premature.

p. 7

Legal principles established

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  • A member of a trade union is entitled under section 44 of the Labour Relations Act and the union's constitution to inspect the union's books of account, and office holders must demonstrate justifiable reason for any failure to make them fully available
  • Failure to allow full inspection of books of account constitutes a breach of the union's constitution, fiduciary duties and statute, entitling members to relief

Court orders

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  1. 1.A declaration that the 2nd – 4th Respondents are in contravention of their fiduciary responsibilities and duties under the Labour Relations Act and the Constitution of the 1st Respondent by failing to make all the books of account available for inspection
  2. 2.An order directing the Respondents to make available all the books of accounts sought by the Petitioners for inspection within the next 15 days
  3. 3. liberty for the Petitioners to raise the agenda of financial management of the Union at the National Delegates Conference
  4. 4.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RS
majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; petition alleging breach of the Labour Relations Act and the Union's Constitution (Article 35(1)(b) of the Constitution of Kenya invoked by Petitioners on access to information)

Relief refused

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Suspension of the 2nd – 4th Respondents and declaration that they are unfit to hold office

The Union's Constitution vests suspension and removal in defined organs of the Union and the Petitioners did not use that route; they may move appropriate motions at the National Delegates Conference

p. 7

Order compelling convening of an Advisory and National Delegates Conference within 60 days

The Respondents had already issued notices convening the meetings during the hearing

p. 7

Finding of financial mismanagement against the Respondents

Allegations rested on raw, draft records in affidavit evidence not tested; the proper forum is the National Delegates Conference

p. 7

Costs

Costs in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An order is hereby issued declaring that the 2nd – 4th Respondents are in contravention of their fiduciary responsibilities and duties under the Labour Relations Act as well as the Constitution of the 1st Respondent by failing to make all the books of account of the 1st Respondent available for inspection.
p. 8Declaration of breach of fiduciary duty
An order is hereby issued directing the Respondents to make available all the books of accounts sought by the Petitioners for inspection within the next 15 days.
p. 8Final orders - mandatory inspection order
The Court is therefore unable, based on afidavit evidence not subjected to interrogation to find that the Respondents are culpable for financial mismanagement.
p. 7Standard of proof on affidavit evidence
The orders suspending and or declaring these Respondents unfit to serve would therefore be out of place at this stage.
p. 7Remedies refused - internal union mechanisms

Issues in the judgment

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minor

Judgment records the Petitioners' further affidavit and submissions as filed on 14 November 2023 pursuant to directions issued on 11 December 2023, an apparently impossible chronology

minor

Costs order appears as an unnumbered line 'Costs in the cause.' following the numbered orders, formatted inconsistently with the other orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Otieno & 37 others v Union of Kenya Civil Servants & 3 others (Petition E027 of 2023) [2024] KEELRC 99 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/99/eng@2024-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.