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ELRCDismissedMemorandum of Appeal dated 6th January 2011 (Industrial Cause)· [2012] KEELRC 2 (KLR)

Munir Masoud & 6 others v Registrar of Trade Unions & another [2012] KEELRC 2 (KLR)

Industrial Court of Kenya
5 December 2012
3,510 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 a union's registration appeal, confirming that applicants must strictly prove compliance with all Labour Relations Act registration requirements.

What this practically means

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Executive summary

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The appellants, promoters of the proposed Tax Collectors Union intended to represent employees of the Kenya Revenue Authority, appealed against the Registrar of Trade Unions' refusal to register the union, seeking an order of quashing and an order compelling registration. Their first registration application of January 2002 had been refused following objections by KUCFAW, BIFU(K), COTU, the Federation of Kenya Employers and the Labour Commissioner; a second application was lodged on 10th August 2009. BIFU(K) was enjoined as an interested party and argued that it had recruited over 900 KRA employees (over 51%), that the application was defective because only six eligible members signed Form A, and that Masoud was ineligible to be an official. The court adopted four issues: procedural and technical soundness of the application, fair hearing, justification of the refusal, and costs. It held that the mandatory requirements of sections 14 and 18 of the Labour Relations Act were not proved to have been met, since Form A lacked the required identification details and the constitution, membership list and the refusal decision itself were never availed to the Court. On the hearing issue, the court found that the Act does not require an oral hearing, that inviting comments on objections was a reasonable opportunity to be heard, and that the Registrar was bound to consult the National Labour Board. The recusal allegation against the Board was unproven for want of evidence from the appellants, and constitutional rights under Article 41 could not be breached retrospectively before promulgation of the 2010 Constitution. The court found the appellants' cited authorities irrelevant as they dealt with different issues, rejected the estoppel argument because each application is considered on its own merits, and dismissed the appeal with each party bearing its own costs.

Key legal issues

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01

Procedural and technical sufficiency of the registration application

Holding

The application was not proved to be technically and legally sound; the only documents availed were the application with unidentified signatures and a receipt, without the constitution, members' list, or the refusal decision.

Reasoning

Form A requires names, titles, identity certificate numbers, addresses and occupations of applicants; only 7 unidentifiable signatures were provided. The constitution of the proposed union, list of members and the notification of refusal were never availed, so the Court could not verify compliance with the mandatory requirements of sections 14 and 18 before quashing or directing registration.

p. 5
02

Right to fair hearing / fair administrative action before refusal of registration

Holding

The Appellants were not denied a hearing; they were given an opportunity to comment on objections, which sufficed.

Reasoning

The Act contains no express provision for an oral hearing before the Registrar; section 20 only requires advice in Form D. The Registrar sent all objections to the Appellants and invited comments, constituting a reasonable opportunity. Reliance on the National Labour Board's advice was statutorily mandated, and no constitutional challenge to that provision was raised.

p. 6
03

Whether the refusal was justified in law and fact; retrospective application of Article 41 of the Constitution

Holding

The Constitution could not have been breached before promulgation; the Respondent could not be held responsible retrospectively.

Reasoning

The application was lodged on 10th August 2009 and the refusal decision made before 11th August 2010, when the 2010 Constitution was not yet in force. Allegations that BIFU(K) was operating outside the law were moot, and the recusal allegation was unproven for want of evidence from the Appellants.

p. 6

Legal principles established

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  • An application for registration of a trade union must strictly comply with the mandatory requirements of sections 14 and 18 of the Labour Relations Act, and the applicant bears the burden of proving compliance.
  • The Labour Relations Act does not expressly require the Registrar to hold an oral hearing before refusing registration; inviting comments on objections is a reasonable opportunity to be heard.
  • The Registrar is bound to act on the advice of the National Labour Board as the law requires.
  • A party alleging non-recusal of an interested party's representative on the National Labour Board bears the burden of proving it.
  • Each application for registration of a trade union is considered on its own merits; a prior unchallenged refusal does not estop a fresh, different application.

Court orders

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

Authorities

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Legislation

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

Cases cited (6)

  • Salim Idd Mwasina & 2 others v Registrar of Trade Unions & 4 Others
    Mombasa High Court Civil Case No. 387 of 2002
  • Industrial Cause No. 75 of 1999
  • Industrial Cause No. 28 of 1996
  • Court of Appeal Appeal No. 60 of 1988
  • Kenya Long Distance Truck Drivers and Allied Workers v Kenya Road Transporters Association & Transport and Allied Workers Union
    Cause No. 488(n) of 2009
  • H.C. Misc. Appl. No. 1683 of 2004
On appeal from
Registrar of Trade Unions (administrative decision)
Jurisdiction invoked
Appeal against the Registrar of Trade Unions' refusal to register a trade union under the Labour Relations Act, 2007

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 2 (KLR)", Case Analysis (2012). Memorandum of Appeal dated 6th January 2011 (Industrial Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/2/eng@2012-12-05

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