CENTRAL ORGANISATION OF TRADE UNIONS-[COTU] V REGISTERED TRUSTEES OF THE CONFEDERATION OF KENYA TRADE UNIONS [2012] KEELRC 257 (KLR)
The bottom line
#Kenya's Industrial Court ruled that a body's objectives—not its registration title—determine whether it is a trade union, allowing a union dispute to proceed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent, registered as a trust, is a trade union within the meaning of the Labour Relations Act
Yes - the Respondent is a trade union for the purposes of the Labour Relations Act notwithstanding its registration as a trust
The court compared the Trust Deed objectives with the statutory definition of a trade union in Section 2 of the Labour Relations Act. Clause 2(b)(i) of the Trust Deed provided for regulating relations, negotiating and settling disputes between members and employers, matching the statutory definition of an association whose principal purpose is to regulate relations between employees and employers.
Whether the Industrial Court has jurisdiction over the dispute
Yes - Section 12(2) of the Industrial Court Act permits a claim against a trade union, and Section 12(1) confers exclusive jurisdiction over disputes including those between employers' organisations and trade unions
Section 12(2) of the Industrial Court Act allows an application, claim or complaint to be lodged against a trade union, and Section 12(1) grants exclusive original jurisdiction over disputes referred under Article 162(2), including disputes between an employers' organisation and a trade union. Since the Respondent is a trade union in substance, the claim falls within jurisdiction.
Whether the Industrial Court has constitutional jurisdiction under Article 165(3)(b) read with Articles 162(2) and 165(5)(b)
Not determined - the question raises a substantial question of law warranting reference under Section 21 of the Industrial Court Act
The judge noted two conflicting High Court decisions (USIU v Attorney General and Samuel G. Momanyi v Attorney General) on the Industrial Court's jurisdiction over Bill of Rights enforcement in employment matters. Since the question was central to the core issues in the claim, the court declined to answer it to avoid pre-empting resolution by an uneven-number bench.
Legal principles established
#- A body need not be registered as a trade union to fall within the definition of a trade union; its objectives determine its classification under the Labour Relations Act
- The Industrial Court has jurisdiction under Section 12 of the Industrial Court Act to determine a claim by a registered trade union against a body whose objectives show it is a trade union
Court orders
#- 1.The Respondent is ordered to file its Response on or before 5 October 2012
- 2.The Registrar of this Court do place this file after lapse of TEN (10) days before the Chief Justice for purposes of assigning an uneven number of Judges of this Court to hear the Cause
- 3.This Cause be mentioned before the Judges assigned by the Chief Justice on 31 October 2012 for further directions
- 4.No order as to Costs
- Jurisdiction invoked
- Section 12 of the Industrial Court Act, 2011 as read with Article 162(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CENTRAL ORGANISATION OF TRADE UNIONS-[COTU] V REGISTERED TRUSTEES OF THE CONFEDERATION OF KENYA TRADE UNIONS [2012] KEELRC 257 (KLR)", Case Analysis (2012). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/257/eng@2012-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.