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ELRCPartially AllowedAppeal No. 7 of 2011· [2014] KEELRC 642 (KLR)

David Benedict Omulama & 8 Others v Registrar Of Trade Union & Another [2014] KEELRC 642 (KLR)

Industrial Court of Kenya
11 February 2014
MMMonica Mbaru
5,908 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Court ruled the Registrar of Trade Unions must give reasons when refusing to register a union and cannot rely on outdated pre-2010 legal thinking.

What this practically means

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Executive summary

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This was an appeal to the Industrial Court of Kenya by nine promoters of the proposed Kenya Export Floriculture, Horticulture and Allied Workers Union (KEFHAU) against the Registrar of Trade Unions' notice dated 30th August 2011 refusing registration of the union. The Registrar had relied on section 14(d) of the Labour Relations Act, acting after the National Labour Board rejected the application, on the view that the interests of the intended members were sufficiently covered by the Kenya Plantation and Agricultural Workers Union, which was enjoined as Interested Party and supported the refusal. The appellants argued that the refusal contravened Articles 36 and 41 of the Constitution, was based on the repealed Constitution's section 80(2)(d) regime, and that floriculture and horticulture are distinct and specialised sectors not genuinely covered by the Interested Party. The respondent and Interested Party contended that the rights relied on are limited by Article 24 and that the LRA deliberately discourages proliferation of unions in the same sector. The court held that the refusal, issued over a year after the Constitution, 2010 came into force, was largely grounded in the repealed constitutional framework and required conformity with the new Constitution per section 7(1) of the Sixth Schedule. The Registrar also failed to give reasons, contrary to Article 47. The court found floriculture and horticulture to be distinct interests and held the refusal unjustified and unreasonable. It allowed the appeal, reversed the Registrar's decision, ordered registration of the union, directed immediate issuance of a registration certificate, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the Registrar's refusal to register the appellant union, based on the existence of the Interested Party and section 14(d) LRA, was reasonable and justified

Holding

The refusal was not justified or reasonable because the appellant's proposed interest in floriculture and horticulture was clearly defined and distinct from the plantations and general agriculture covered by the Interested Party, and the decision was largely grounded in the repealed constitutional framework.

Reasoning

The court found the refusal rested on the repealed Constitution's section 80(2)(d) regime, which permitted refusal where an existing union was sufficiently representative. Under the Constitution, 2010, section 7(1) of the Sixth Schedule requires pre-existing law to be construed in conformity with the new Constitution. The Registrar also gave no reasons for the rejection, contrary to Article 47. The floriculture and horticulture sectors are distinct, emerging sectors deserving their own representation, so the right to form a union of one's choice under Articles 36 and 41 outweighed the objection.

p. 9
02

Whether the Registrar complied with fair administrative action requirements

Holding

The Registrar's failure to give or outline reasons for rejecting the registration rendered the decision subjective and contrary to Article 47 of the Constitution.

Reasoning

The Registrar was obliged, where not satisfied that an applicant union meets registration requirements, to notify the applicant of the decision and provide reasons, and to conduct an enquiry into the proposed union's constitution vis-à-vis existing unions. The notification of refusal was issued without reasons. Fair administrative action must be based on a sound finding of fact or law; an unreasoned administrative decision fails that standard and cannot stand.

p. 8

Legal principles established

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  • The Registrar of Trade Unions, when refusing registration, must provide reasons for the decision; an unreasoned refusal is contrary to Article 47.
  • Laws in force before the effective date of the Constitution, 2010 must be construed with alterations, adaptations, qualifications and exceptions to bring them into conformity with the Constitution.
  • The right to join and form a trade union of one's choice is protected for all employees in an open and democratic society, and a Registrar's duty includes balancing that right against fragmentation and proliferation of trade unions.

Court orders

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  1. 1.The decision of the Registrar of Trade Unions on 30th August 2011 is hereby reversed
  2. 2.The Kenya Export Floriculture, Horticulture and Allied Workers' Union is hereby registered as a trade union
  3. 3.The Registrar of Trade Unions to immediately issue the appellant with its registration certificate
  4. 4.Each party to bear their own costs
On appeal from
Registrar of Trade Unions
Jurisdiction invoked
Section 12 of the Industrial Court Act, Rules 8 and 27 of the Industrial Court Procedure Rules and section 30 of the Labour Relations Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "David Benedict Omulama & 8 Others v Registrar Of Trade Union & Another [2014] KEELRC 642 (KLR)", Case Analysis (2014). Appeal No. 7 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/642/eng@2014-02-11

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