Ndungu v Union of Kenya Civil Servants & 2 others (Petition E233 of 2023) [2024] KEELRC 1306 (KLR)
The bottom line
#Kenya's Employment Court ruled that retiring from the civil service does not remove an elected union official from office before their term ends.
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 preliminary objection on jurisdiction/res judicata/prematurity succeeds
- 2.Whether the petitioner's retirement from civil service after election terminates his tenure as National Organising Secretary
- 3.Whether the petitioner is entitled to hold office and complete his term under the Union's constitution
Key legal issues
#Whether res judicata barred the petition given the earlier ELRC Petition No. 224 of 2022
Res judicata does not apply because the earlier petition was struck out, not dismissed, and hence not determined on merits
The Court noted that the earlier petition between the same parties was struck out by Ndolo J in the ruling delivered on 11.05.2023, directing parties to exhaust internal dispute resolution under Article 16(3) of the Union Constitution. Since striking out is not a determination on the merits, the res judicata doctrine cannot be invoked. Further, the petition was not premature because the respondents had not cooperated in invoking the internal mechanisms, and nothing rebutted the petitioner's case that internal mechanisms were incapable of implementation.
Whether retirement from civil service terminates the petitioner's elected union tenure
The petitioner's tenure is protected; retirement after election does not impair it
Article 11 of the Union Constitution provides that every elected official holds office for a term of five years, expiring at the National Quinquennial Delegates Conference. There was no valid constitutional ground for terminating the petitioner's tenure. The qualification of being a serving civil servant is relevant only at election. This accords with the earlier decision in Justus Kinyua Mugo v UKCS, which the Court adopted at the instance of the interested party.
Whether the petitioner's constitutional rights were violated
Violations of Articles 27, 28, 41, 47 and 50(1) established through interference with his service as National Organising Secretary
The Court found that the manner in which the respondents interfered with the petitioner's service as National Organising Secretary, including the attempt to remove him on account of retirement, breached his constitutional rights to non-discrimination, dignity, fair labour practices, fair administrative action and a fair hearing.
Legal principles established
#- Retirement from civil service in the intervening period does not impair the tenure of an elected union official who was a serving civil servant at election.
Court orders
#- 1.Declaration that the petitioner is entitled to hold office and complete his term of office as the National Organising Secretary of the 1st respondent
- 2.Declaration that the petitioner be reinstated, if at all purportedly removed, as the National Organising Secretary of the 1st respondent immediately
- 3.Declaration that the 1st respondent to pay the petitioner all withheld monthly salaries and allowances together with interest at court rates
- 4.Declaration that the 2nd respondent's attempt to remove the petitioner from office is discriminatory, unlawful, ultra vires and unconstitutional
- 5.Declaration that the respondent and its organs are not entitled to consider the removal of the petitioner from office on account of his subsequent retirement from the civil service
- 6.Respondents to pay the petitioner's costs; other parties to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 27, 28, 41, 47 and 50(1) of the Constitution (employment and labour relations jurisdiction of the ELRC)
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.
It appears that at election, the candidate must be a serving civil servant and the cessation of the service in the intervening period does not impair the tenure of an elected union oficial.
The petition was struck out and not dismissed per the ruling by Ndolo J in petition no. 224 of 2022 delivered on 11.05.20923. Thus it appears to the Court that the matter was not determined on merits. The doctrine of res judicata will not apply.
The declaration that the petitioner is entitled to hold ofice and complete his term of ofice as the National organizing secretary of the 1st respondent.
Issues in the judgment
#Typographical error in the date of the ruling in petition no. 224 of 2022 rendered as '11.05.20923'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Union of Kenya Civil Servants & 2 others (Petition E233 of 2023) [2024] KEELRC 1306 (KLR)", Case Analysis (2024). ELRC Petition (Nairobi) filed 11.12.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1306/eng@2024-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.