Kuppet, Nairobi County Branch & 3 others v Kenya Union of Post Primary Education Teachers & 9 others [2015] KEELRC 49 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.1628 OF 2015

KUPPET, NAIROBI COUNTY BRANCH .….…..…. 1^ST CLAIMANT

JOHNSON MUTHAMA WAITHAKA …....…..…….. 2^ND CLAIMANT

 LEONARD RUFUS OCHIENG ………...……………. 3^RD CLAIMANT

ROBERT BARASA KARANI ……….……...…..…… 4^TH CLAIMANT

VERSUS

  KENYA UNION OF POST PRIMARY                                                        

EDUCATION TEACHERS & 5 OTHERS.……..... 1^ST RESPONDENT

REGISTRAR OF TRADE UNIONS ………..…… 2^ND RESPONDENT

MAURICE AKELLO MISORI …………..………. 3^RD RESPONDENT

MOSES OWITI MBORA …………….…………. 4^TH RESPONDENT

PHYLIS S. MWACHILUMO …………...……….. 6^TH RESPONDENT

AND

CFC STANBIC BANK LTD. ……………. 1^ST INTERESTED PARTY

JAYNE NYAGOHA EMISEMBE ………. 2^ND INTERESTED PARTY

RULING

1. The Notice of Motion application dated 17^th September 2015 and filed on 18^th September 2015 seeks various reliefs set out in the Notice of Motion pending the hearing and determination of the suit.  At the exparte stage interim orders sought in prayers a to f were granted pending the hearing and determination of the Application.
2. At the outset the locus standi of the 3^rd Claimant to represent the 1^st Claimant Nairobi County Branch of KUPPET, 2^nd Claimant Johnson Muthama Waithaka, and 4^th Claimant Robert Barasa Karani, was questioned by Advocate Okwe Achiado on behalf of the 1^st Respondent, Kenya Union of Post Primary Education Teachers (KUPPET).
3. It is common cause that Mr. Leonard Rufus Ochieng is not an Advocate of the High Court.  From the papers filed on record, and in particular Annex ‘4’ to the Application and memorandum of Claim, Mr Leonard  Rufus Ochieng is shown to have been registered by the 2^nd Respondent, the Registrar of Trade Unions as the Executive Secretary of the Kenya Union of Post primary Education Teachers, Nairobi County Branch as at 26^th May 2015.
4. On this basis alone, Mr Rufus Ochieng has the locus standi to bring this suit, the issue in dispute being contested dissolution of the 1^st Claimant by the 1^st, 3^rd, 4^th, 5^th and 6^th Respondents.  The other issue in dispute is between the 2^nd, 3^rd and 4^th Claimants and the 3^rd, 4^th, 5^th and 6^th Respondent who are the elected and gazetted officials of the Nairobi Branch of Kenya Union of Post Primary Education Teachers. 
5. The facts of the dispute may be summarized as follows;

This court made an order in cause No 904 of 2011 nullifying the registration of the 4^th 5^th and 6^th Respondent as the officials of the 1^st claimant on 3^rd March 2015.  The Registrar of trade Unions (2^nd Respondent) in obedience of the said order, deregistered the 4^th, 5^th and 6^th Respondents  as the officials of the 1^st claimant as at 26^th May 2015.  The 2^nd to 3^rd Claimants were registered as Executive Secretary, Treasurer, and Assistant Treasurer of the 1^st Claimant respectively.

6. The Claimants allege that on diverse dates after their removal from office, the 3^rd to 6^th Respondents not withstanding their knowledge of the orders of the Court removing them from office caused an account to be opened in the name of the 1^st Claimant being A/C. No.0100003712855 and held with the 1^st Interested Party (CFC Stanbic Bank Ltd) in violation of Article 17 of the Union Constitution which provides that such an account could only be opened by the Treasurer and signatories of the said account.
7. That the 3^rd Respondent retained the 4^th, 5^th and 6^th Respondent as signatories and obstructed the changes to the said account and the 4^th – 6^th Respondents continued to make withdrawals from the account which money is not accounted for.  This continued notwithstanding the protest by the claimants to the interested party branch in Buruburu.
8. That subsequently, the 3^rd – 6^th Respondents without a procedural notice convened a National Governing Council (NGC) meeting of the 1^st Respondent (KUPPET) in which the 3^rd Respondent moved a motion to dissolve the 1^st Claimant.  That the Union Constitution does not provide for such a dissolution and therefore such powers only vest in the members of the Branch.  That the 1^st Interested Party continues to defy the mandate of the lawfully elected officials of the 1^st claimant and continues to get instructions from other persons.
9. That the dissolution is unlawful and will deny the members of Nairobi Branch representation and remove the Claimants from office in a manner not contemplated by the Constitution. 
10. The 1^st and 3^rd Respondents filed a replying Affidavit to the application.  The Affidavit is sworn by Akelo Misori the 3^rd Respondent who is the Secretary General of Kenya Union of Post Primary Education Teachers.
11. The 3^rd Respondent states that, the Claimants/Applicants have not satisfied the preliquisites of granting an injunction in that a prima facie case has not been disclosed.  That the claimants are not likely to suffer irreparable harm and the balance of convenience favours the Respondents.
12. Furthermore, the Claimants/Applicants have concealed material facts and are therefore not entitled to the relief sought.  That the 3^rd Claimant is employed by Aviation and Allied Services Workers Union and the Dock Workers Union as their Industrial Relations Officer and has been representing the two unions in Court.  That the 3^rd Claimant is not a member of Kenya Union of Post Primary Education Teachers and having been dismissed by Teachers Service commission he had no locus standi to represent the 2^nd and 4^th claimants and his appearance is in violation of the Labour Relations Act and the Advocates Act.
13. The Respondent deny the averments by the claimants with regard to happenings in Cause No. 904 of 2015 heard on 17^th February 2015.  That the 3^rd Respondent was not a party to the suit and the 4^th, 5^th and 6^th Respondents have filed application to review the Judgment in Cause No. 904 of 2011 for lack of proper service on them as they did not receive notices in the matter.
14. The Respondents state that the meeting in which the claimants were elected as officials was convened in contravention of the union constitution in that no members of the union participated in it.
15. That the official change of signature to the 1^st claimant occurred on 3^rd July, 2015 and impugned transactions occurred between 31^st May 2015 to 3^rd July, 2015.  Therefore no unauthorized transaction has taken place in the account.  That the Buruburu Account was opened with full knowledge and approval of KUPPET, the 1^st Respondent and the funds were utilized to operate the office of the 1^st Claimant in the most effective accountable and transparent manner.
16. The Respondent pray that the Application be dismissed for lack of merit.
17. Determination

(1)   Whether the Claimant/Applicant has made a primafacie case.

(ii)  Whether the claimants are likely to suffer irreparable loss.

(iii)  Where the balance of convenience lies

18. Prima facie Case

The conditions for grant of an interlocutory injunction are now well settled.  These were set out in Giella  - vs- Cassman Brown Co. Ltd (1973) EA 358 as follows;

(a)   An applicant must shows a prima facie case with probability of success.

(b)   An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.

(c)   If the Court is in doubt, it will decide on application on the balance of convenience.

19. It is important to note as was observed in May Aliwza & Okoth Mondoh v. Attorney General of Kenya and Secretary General of East African Community EACs Application No. 3 of 2010 EALS, Law Digest 2005-2011 Page 1.

“At this stage we must of course refrain from making any determination on the merits of the application or any defence to it.  A decision on the merits or demerits of the case must await the substantive consideration of the facts and applicable law after full hearing of the Reference.”

20. The Court is satisfied that the claimants have established a primafacie case with probability of success with regard to prayers g, j, and k of the Notice of Motion.
21. The Claimants/Applicants have demonstrated that they are likely to suffer irreparable loss if the injunction is not granted.
22. The balance of convenience also favours the grant of an injunction in terms of prayers g, j. and k of the Notice of Motion pending the hearing and determination of the main suit.  The Application succeeds in that respect and grants interim relief in terms of prayer g, j and k of the Notice of Motion pending the hearing and determination of the main suit.

Dated and Delivered at Nairobi this 18^th day of December 2015

MATHEWS NDERI NDUMA

PRINCIPAL JUDGE