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Court of AppealDismissedCivil Appeal (Court of Appeal, Nairobi)· [2024] KECA 108 (KLR)

Ongera & 2 others v Registrar of Trade Unions & another (Civil Appeal 469 of 2018) [2024] KECA 108 (KLR)

Court of Appeal
9 February 2024
3,331 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellants, promoters of the proposed National Union of Shops-Retailers and General Merchants Workers, appealed against the judgment of the Employment and Labour Relations Court at Nairobi (H. Wasilwa, J.) delivered on 3rd October 2018, which dismissed their appeal against the Registrar of Trade Unions' refusal of 20th April 2016 to register the proposed union. The Registrar, following consultation with the National Labour Board under section 19 of the Labour Relations Act, refused registration on the ground that the Kenya Union of Commercial Food and Allied Workers (the 2nd respondent) already sufficiently represented the targeted retail sector. The Court of Appeal (S. Gatembu Kairu, F. Tuiyott and J. Lesiit, JJ.A) distilled three issues: whether the judge erred in upholding the Registrar's finding of sufficient representation; whether she went beyond the pleadings and evidence; and whether she erred in applying the Court of Appeal's decision in Charles Salano. The Court found an evidentiary basis for the Registrar's decision in the 2nd respondent's constitutional coverage and its sample recognition and collective bargaining agreements, held that the statutory restriction on registering rival unions is a reasonable and justifiable limitation of freedom of association under article 24, and found Charles Salano distinguishable only as to procedural stage but sound in principle. The complaint that the judge relied on nonexistent submissions was rejected as immaterial to the outcome. The appeal was dismissed with costs to the respondents. This judgment binds subordinate courts and tribunals on the application of section 14(1)(d)(i) of the Labour Relations Act.

Key legal issues

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01

Whether the sector targeted by the proposed union was already sufficiently represented by the existing union

Holding

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.

Reasoning

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.

p. 5
02

Whether reliance on Charles Salano was erroneous

Holding

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.

Reasoning

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.

p. 6
03

Whether the ELRC judge went beyond the pleadings and evidence

Holding

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'.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Appeal dismissed with costs to the respondents

Authorities

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Legislation

  • Labour Relations Actsection 19
  • Labour Relations Actsection 12
  • Labour Relations Actsection 14
  • Labour Relations Actsection 14(1)(d)(i)
  • Labour Relations Actsection 14(2)
  • Labour Relations Actsection 20
  • Labour Relations ActPart III
  • Labour Relations ActFirst Schedule
  • Labour Relations ActSecond Schedule (Form D)
  • Constitution of Kenya, 2010article 24
  • Constitution of Kenya, 2010article 36
  • Constitution of Kenya, 2010article 41

Cases cited (9)

  • Charles Salano & 9 others v Registrar of Trade Unions and Kenya Union of Commercial Food and Allied Workers
    CA No. 19 of 2016
  • Nahason Ndiamae & 9 others v Registrar of Trade Unions
    [2017] eKLR
  • Independent Electoral and Boundaries Commission and another v Stephen Mutinda Mule and 3 others
    [2014] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others
    [2013] eKLR
  • Frank Esevwe & 6 others (being proposers and promoters of Universities Service Workers Union) v Registrar of Trade Unions
    [2018] eKLR
  • Peter Muthoka and another v Ochieng & 3 others
    [2019] eKLR
  • United India Insurance Co Ltd Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co Ltd v East African Underwriters (Kenya) Ltd
    (1985) eKLR
  • In the Matter of Loh'e Issa Konate vs. Burkina Faso
    Application No. 004/2013
  • In the Matter of Ingabire Victorie Umuhoza vs. Republic of Rwanda
    Application 003/2014
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

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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, "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.