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IndustrialAllowedNot stated in judgment (application dated 29th April 2011)

Opande & 5 others v KUPPET Nairobi Branch & 2 others (Cause 463 of 2011) [2011] KEIC 35 (KLR)

Industrial Court (Industrial Court of Kenya)
5 May 2011
954 words in judgment
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The bottom line

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Kenya's Industrial Court confirmed it can reinstate a union election dispute dismissed for non-attendance and restore protective orders stopping the elections.

What this practically means

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Executive summary

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The applicants, six members represented by Mr. Oduor, moved the Industrial Court by Notice of Motion dated 29th April 2011 under section 12 of the Labour Institutions Act, seeking reinstatement of their dispute which had been dismissed on 28th April 2011 for non-attendance, and restoration of orders previously issued on 31st March 2011. The underlying dispute, a memorandum of claim dated 24th March 2011, sought to restrain the Registrar of Trade Unions from adopting Form Q containing results of the KUPPET Nairobi Branch election, to have those elections declared null and void, and to compel fresh elections under the union constitution. Mr. Ochieng for the 1st Respondent opposed, contending the application was for review and should have been brought under section 26 of the Act, and noting elections were scheduled for 28th May 2011. The other respondents did not appear or file replies. The court found the advocate's non-attendance excusable, since the court had called the matter using names of advocates who held brief in the morning session. It held that section 12 of the Act confers wide jurisdiction, that section 34(4) of the Labour Relations Act, 2007 brings union election disputes before it, and that section 12(5) empowers it to make orders promoting the objects of the Act. Allowing the application, the court vacated the dismissal, reinstated the suit for hearing on merit, re-issued the order stopping the 2nd Respondent's elections for ninety days, restrained the Registrar from implementing Form Q, and ordered 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 court has power to reinstate a suit dismissed for non-attendance and to revive orders previously issued
  2. 2.Whether the application, though framed under section 12 rather than section 26 of the Labour Institutions Act, was competent

Key legal issues

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01

Jurisdiction over union election disputes

Holding

The dispute arising from the 1st Respondent's elections was properly before the Industrial Court.

Reasoning

The court noted that section 12 of the Labour Institutions Act, 2007 grants wide jurisdiction, and section 34(4) of the Labour Relations Act, 2007 specifically allows disputes arising directly or indirectly from union elections to be referred to the court, so the election dispute fell within its jurisdiction.

p. 2
02

Power to reinstate a suit dismissed for non-attendance

Holding

The court has power under section 12(5) of the Labour Institutions Act to make orders it deems necessary, including reinstatement, and exercised that discretion in the applicants' favour.

Reasoning

The advocate's non-attendance was not deliberate; the court had called the matter using the names of advocates who held brief in the morning, and the advocate could be excused for not answering promptly. This established sufficient cause, warranting exercise of the court's wide discretion under section 12(5).

p. 3
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Correct statutory provision for the application

Holding

The court treated the application as one for reinstatement rather than review, resting on section 12(5) rather than section 26 of the Labour Institutions Act.

Reasoning

The 1st Respondent argued the application was for review under section 26 and thus wrongly founded. Applicant's counsel maintained it was for reinstatement under section 12(5). The court accepted the reinstatement characterisation and granted the application under its general power.

p. 2

Legal principles established

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  • Disputes arising directly or indirectly from union elections are properly referable to the Industrial Court.
  • The Industrial Court may make any order it deems necessary to promote the objects of the Labour Institutions Act, including reinstating suits dismissed for non-attendance.

Court orders

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  1. 1.The order issued on 28th April 2011 dismissing the dispute is vacated and set aside
  2. 2.The dispute shall be heard and determined on merit on a date to be fixed
  3. 3.The order stopping the elections for the 2nd Respondent for ninety (90) days is re-issued
  4. 4.The 3rd Respondent is restrained by an order of injunction from implementing Form Q until hearing and determination of the dispute
  5. 5.Costs shall be in the cause

The bench

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

Wrote the judgment

majority
majority
Jurisdiction invoked
Section 12 of the Labour Institutions Act, 2007; Section 34(4) of the Labour Relations Act, 2007

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.

Section 34(4) of Labour Relations Act 2007 provides that disputes arising directly or indirectly from union elections may be referred to this Court.
p. 2Jurisdiction over union election disputes
The order issued on 28th April 2011 dismissing this dispute be and is hereby vacated and set aside.
p. 3Reinstatement of suit dismissed for non-attendance
The order stopping the elections for the 2nd Respondent for ninety (90) days is hereby re-issued.
p. 3Revival of conservatory orders
The 3rd Respondent is hereby restrained by an Order of injunction from implementing Form Q which sought to change the oficials of the Nairobi KUPPET Branch until hearing and determination of this dispute.
p. 3Injunction against Registrar of Trade Unions
Costs shall be in the cause.
p. 3Costs

Issues in the judgment

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minor

The memorandum of claim is inconsistently dated: the judgment records a claim dated 24th March 2011 seeking to nullify elections of 5th April 2011, an impossible chronology.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Opande & 5 others v KUPPET Nairobi Branch & 2 others (Cause 463 of 2011) [2011] KEIC 35 (KLR)", Case Analysis (2011). Not stated in judgment (application dated 29th April 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2011/35/eng@2011-05-05

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