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ELRCDismissedNot stated in judgment· [2012] KEELRC 257 (KLR)

CENTRAL ORGANISATION OF TRADE UNIONS-[COTU] V REGISTERED TRUSTEES OF THE CONFEDERATION OF KENYA TRADE UNIONS [2012] KEELRC 257 (KLR)

Industrial Court of Kenya
5 October 2012
2,310 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Industrial Court ruled on a preliminary objection by the Registered Trustees of the Confederation of Kenya Trade Unions, who argued that the court lacked jurisdiction because the Respondent was a registered trust, not a trade union, and that any challenge to its existence and freedom of association lay in the High Court under Article 165(3)(b). COTU(K) had sued seeking declarations and injunctions restraining the Respondent from carrying out trade union activities and collecting funds from employees. The court examined the Respondent's Trust Deed objectives, notably the clause regulating relations, negotiating and settling disputes between members and employers, and held that the Respondent, though not registered as a trade union, met the statutory definition of a trade union under Section 2 of the Labour Relations Act. On jurisdiction, the court found that Section 12(2) of the Industrial Court Act permits claims against a trade union, and Section 12(1) confers exclusive jurisdiction over disputes referred under Article 162(2). The court therefore held it had jurisdiction to determine the claim and dismissed the preliminary objection. It declined to decide the constitutional question under Article 165(3)(b), noting conflicting High Court decisions and that the issue raised a substantial question of law under Section 21 of the Industrial Court Act, and referred the file to the Chief Justice to assign an uneven number of judges. The Respondent was ordered to file its response by 5 October 2012, with no order as to costs.

Key legal issues

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01

Whether the Respondent, registered as a trust, is a trade union within the meaning of the Labour Relations Act

Holding

Yes - the Respondent is a trade union for the purposes of the Labour Relations Act notwithstanding its registration as a trust

Reasoning

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.

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02

Whether the Industrial Court has jurisdiction over the dispute

Holding

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

Reasoning

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.

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03

Whether the Industrial Court has constitutional jurisdiction under Article 165(3)(b) read with Articles 162(2) and 165(5)(b)

Holding

Not determined - the question raises a substantial question of law warranting reference under Section 21 of the Industrial Court Act

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The Respondent is ordered to file its Response on or before 5 October 2012
  2. 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. 3.This Cause be mentioned before the Judges assigned by the Chief Justice on 31 October 2012 for further directions
  4. 4.No order as to Costs

Authorities

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Legislation

  • Labour Relations ActSection 2, Section 12
  • Labour Institutions ActSection 12
  • Industrial Court (Procedure) Rules 2010rule 13
  • Industrial Court ActSection 2, Section 12, Section 21
  • Constitution of Kenya, 2010Articles 36, 162(2), 165(3)(b), 165(5)(b)
  • Trade Disputes Actrepealed regime referenced

Cases cited (2)

  • United States International University (USIU) v The Attorney General & others
    (2012) eKLR, Nairobi High Court Petition No.170 of 2012
  • Samuel G. Momanyi v the Attorney General & Another
    [2012] eKLR, Nairobi High Court Petition No. 341 of 2011
Jurisdiction invoked
Section 12 of the Industrial Court Act, 2011 as read with Article 162(2) of the Constitution

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, "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.