Ongera & 2 others v Registrar of Trade Unions & another (Civil Appeal 469 of 2018) [2024] KECA 108 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the Registrar can refuse to register a new trade union if an existing one already represents the workers involved.
What this practically means
#Executive summary
#Key legal issues
#Whether the sector targeted by the proposed union was already sufficiently represented by the existing union
The Registrar acted on an evidentiary basis - the 2nd respondent's constitutional rule 3 coverage and sample recognition and collective bargaining agreements - to find sufficient representation under section 14(1)(d)(i); the ELRC rightly upheld the refusal.
Section 14(1)(d)(i) of the Labour Relations Act bars registration where an existing union sufficiently represents the interests concerned. The 2nd respondent's constitution, under rule 3, covered shops, malls, retail chains and general merchants, and it produced sample recognition and collective bargaining agreements with various supermarkets. The court agreed with the ELRC judge that registration was properly refused to avoid proliferation and weakening of trade unions.
Whether reliance on Charles Salano was erroneous
The Charles Salano decision is sound and applicable; it is distinguishable only in that the promoters there were at the certificate-of-establishment stage while the present appellants were at the registration stage.
The court found the principle in Charles Salano - that limiting associational rights under articles 36 and 41 by refusing registration of a rival union is reasonable and justifiable under article 24 - to be sound. The only factual difference was the procedural stage reached by the applicants, which does not affect the principle. Counsel's submission invoking Jasbir Singh Rai against departing from precedent was upheld.
Whether the ELRC judge went beyond the pleadings and evidence
The complaint lacked merit; the decisive finding supporting the judgment was the Registrar's specific finding of duplication of representation, and there was no demonstrated prejudice from the reference to 'two unions'.
Although the Registrar's ELRC submissions were not in the record, the Court doubted the judge would have summarised nonexistent submissions. Critically, the upheld decision rested on the Registrar's Form D finding that the 2nd respondent represented the same sector and that registration would lead to duplication of representation, so the alleged reference to two unions was immaterial to the outcome.
Legal principles established
#- Under section 14(1)(d)(i) of the Labour Relations Act, the Registrar may refuse registration of a proposed trade union where an existing registered trade union sufficiently represents the whole or a substantial proportion of the interests in respect of which registration is sought; a constitutional objective in a union's constitution coupled with recognition and collective bargaining agreements constitutes an evidentiary basis for such a finding.
- The Registrar's discretion to register or refuse registration of a trade union is a structured discretion, not a wild and unaccountable one, and a challenger must show misdirection, failure to consider relevant matters, or that the decision is plainly wrong before the ELRC will interfere.
- The statutory restriction on registering rival unions under the Labour Relations Act is a limitation on freedom of association that is reasonable and justifiable under article 24 of the Constitution, serving the legitimate purpose of avoiding proliferation and weakening of trade unions.
Court orders
#- 1.Appeal dismissed with costs to the respondents
- On appeal from
- Employment and Labour Relations Court, Nairobi
- Appeal No. 3 of 2017
- Jurisdiction invoked
- First appellate jurisdiction under the Employment and Labour Relations Act against the judgment of the ELRC (specific statutory basis not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- James Muigai Cattleman & another v Registrar of Trade Unions & Kenya Union of Commercial Food and Allied Workers (Interested Party)[2026] KEELRC 2690 (KLR)30 Sept 2026
- Kenya Petroleum Oil Workers Union v Stratostaff East Africa Ltd[2026] KEELRC 2523 (KLR)24 Sept 2026applied
Cite this brief
#Cite this brief
Caselaw, "Ongera & 2 others v Registrar of Trade Unions & another (Civil Appeal 469 of 2018) [2024] KECA 108 (KLR)", Case Analysis (2024). Civil Appeal (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/108/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.