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ELRCDismissedMemorandum of Appeal dated 6th January 2011 (Industrial Court)· [2012] KEELRC 1 (KLR)

Munir Masoud & 6 others v Registrar of Trade Unions & another [2012] KEELRC 1 (KLR)

Industrial Court (Industrial and Labour Relations Court)
5 December 2012
3,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court dismissed tax collectors' bid to force registration of their union because they failed to prove their application met mandatory legal requirements.

What this practically means

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Executive summary

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The Appellants, promoters of the proposed Tax Collectors Union, appealed against the Registrar of Trade Unions' refusal to register the union, sought quashing of the refusal dated 10th December 2010 and an order compelling registration. The union had first sought registration in 2002 to represent Kenya Revenue Authority employees, but faced objections from KUCFAW, BIFU(K), COTU, the Federation of Kenya Employers and the Labour Commissioner on the ground that existing unions adequately covered KRA employees. A second application was filed on 10th August 2009. BIFU(K) was enjoined as an Interested Party. The Registrar and BIFU(K) argued the application was defective, that existing unions sufficiently represented the employees, that Form A was signed by only six eligible members since Mr Masoud was not a KRA employee, and that the Appellants were estopped by their failure to challenge the first refusal. The Court adopted four issues: procedural soundness of the application, fair hearing, justification of the refusal, and costs. It found the application documents availed were insufficient to prove compliance with the mandatory requirements of sections 14 and 18 of the Labour Relations Act: Form A lacked signatory identification and the constitution, membership list and refusal decision were never placed before the Court. The Court held the Appellants were not denied a fair hearing, having been invited to comment on objections, and that reliance on the National Labour Board was statutorily required. Article 41 could not apply retrospectively as the decision predated the 2010 Constitution. The allegation of non-recusal by BIFU(K)'s board representative failed for want of proof. Failure to challenge the first refusal did not estop the fresh application, each application being considered on its own merits. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Compliance with registration requirements under sections 14 and 18 of the Labour Relations Act

Holding

The Appellants failed to prove their application met the mandatory requirements; Form A lacked identification details and the constitution, minutes and refusal decision were not availed to the Court

Reasoning

The Court noted the only documents availed were the application and payment receipt. Form A contained seven signatures without identification of signatories, and no constitution or membership list was submitted. The Registrar's refusal decision was also never availed. Since sections 14 and 18 are mandatory, the Appellants could not discharge the burden of proving their application was technically and legally sound.

p. 6
02

Whether the Appellants were denied a fair hearing

Holding

No denial of fair hearing; the Registrar forwarded all objections to the Appellants and invited comments, which was a reasonable opportunity to be heard

Reasoning

Although the Labour Relations Act contains no express provision for an oral hearing before rejection, the Registrar sent all objections to the Appellants and sought their comments. The Court held this amounted to a reasonable opportunity. Reliance on the National Labour Board's advice was statutorily mandated, and the allegation that the Interested Party's representative failed to recuse himself was unproved, the onus lying on the Appellants.

p. 6
03

Retrospective application of Article 41 of the Constitution

Holding

Article 41 could not have been breached as the registration decision predates the promulgation of the 2010 Constitution

Reasoning

The application was lodged on 10th August 2009 and the Registrar's decision made before 11th August 2010, before the promulgation of the Constitution. The Respondent could not be held responsible for implementing constitutional provisions retrospectively.

p. 7
04

Sufficiency of representation by existing unions

Holding

A moot issue; whether BIFU(K) operates within the law was not the question before the Court

Reasoning

The Appellants argued that BIFU(K) did not meet the requirements of the Labour Relations Act, but the Court held the issue before it was the propriety of its own application for registration, not the legality of the existing unions' operations. The authorities cited by the Appellants were held to be irrelevant as they concerned different issues.

p. 7

Legal principles established

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  • An applicant for trade union registration bears the burden of proving compliance with the mandatory requirements of sections 14 and 18 of the Labour Relations Act
  • The Registrar has no express statutory duty to hear an applicant before rejecting a registration application, but affording the applicant an opportunity to respond to objections satisfies fair hearing requirements
  • Each application for registration of a trade union is considered on its own merits; failure to challenge an earlier refusal does not estop a fresh application

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.Each party shall bear its costs

Authorities

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Legislation

  • Industrial Relations CharterPart B II clause No.4
  • Labour Relations Act, 2007Sections 4, 5, 14, 18, 20, 30 and 31(2); First Schedule; Second Schedule (Form D)
  • Labour Institutions Act, 2007Sections 6, 7, 12 and 31
  • Constitution of Kenya, 2010Articles 27(1),(2),(4),(6); 41(1), 41(2)(c); 73

Cases cited (6)

  • Salim Idd Mwasina & 2 others Vs Registrar Of Trade Unions & 4 Others
    Mombasa High Court Civil Case No. 387 of 2002
  • Industrial Cause No. 75 of 1999
    Industrial Cause No. 75 of 1999
  • Industrial Cause No. 28 of 1996
    Industrial Cause No. 28 of 1996
  • Court of Appeal Appeal No. 60 of 1988
    Appeal No. 60 of 1988
  • Kenya Long Distance Truck Drivers and Allied Workers Vs Kenya Road Transporters Association & Transport and Allied Workers Union
    Cause No. 488(n) of 2009
  • H.C. Misc. Appl. No. 1683 of 2004
    H.C. Misc. Appl. No. 1683 of 2004
Jurisdiction invoked
Trade union registration dispute arising under the Labour Relations Act, 2007 and Labour Institutions Act, 2007; hearing before the Industrial Court

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, "Munir Masoud & 6 others v Registrar of Trade Unions & another [2012] KEELRC 1 (KLR)", Case Analysis (2012). Memorandum of Appeal dated 6th January 2011 (Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/1/eng@2012-12-05

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