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ELRCDismissedPetition (notice of motion dated 26th September 2014)· [2015] KEELRC 708 (KLR)

Wesley Tomno & 10 others v Registrar of Trade Unions & another [2015] KEELRC 708 (KLR)

Industrial Court of Kenya
29 July 2015
NMNzioki wa Makau
2,147 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Petitioners, seeking registration of the Kenya Health Professionals Union, moved the Industrial Court under Rules 13, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 and provisions of the Labour Relations Act and Industrial Court Act, seeking mandatory orders compelling the Registrar of Trade Unions to register the union and issue a certificate of registration. The Petitioners asserted compliance with registration requirements and invoked Articles 36 and 41 of the Constitution and ILO Convention 87, contending that lab technicians, dentists, orthopedic professionals, public health officers and private practitioners were left without a union. The Respondent filed a preliminary objection contending the Petition was incompetent, that no application for registration had been made under Sections 13 and 14 of the Labour Relations Act, and that the intended union contravened Section 30. The Respondent argued the refusal rested on existing representation by KUDHEIHA, the Kenya Union of Nurses and KMPPDU, and faulted the Petitioners for failing to attach the notification of refusal. The court, per Nzioki wa Makau J, reviewed the statutory scheme including the proviso to Section 14 and Section 19, and held that the proposed union would be superfluous since the health professionals concerned are already catered for by existing unions. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Justifiability of the Registrar's refusal to register the proposed union

Holding

The refusal was justified because existing unions already represent the interests of the proposed members

Reasoning

The court noted the safeguards in the Labour Relations Act against duplicity and overlap, the existence of KUDHEIHA, KNUN and KMPPDU, and held that the health professionals proposed for membership are already catered for. Refusing registration of a union for an adequately represented sector is justifiable in an open and democratic society abiding by international norms.

p. 5
02

Burden regarding compliance with Section 13 of the Labour Relations Act

Holding

The Respondent was duty bound to demonstrate the Petitioners' default under Section 13, but nothing much turned on it

Reasoning

The court held that the Respondent bore the burden of showing how the Petitioners defaulted under Section 13, and that Section 30 carried little weight; the decisive provision was the proviso to Section 14 requiring the Registrar to invite objections from existing unions with the same interests and to consult the Labour Board.

p. 5

Legal principles established

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  • Freedom of association under ILO Convention 87 and Articles 36 and 41 of the Constitution is qualified: registration of a trade union may be refused where the sector is adequately represented by existing unions

Court orders

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  1. 1.The application dated 26th September 2014 is dismissed
  2. 2.Costs to the Respondent

Authorities

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Legislation

  • Labour Relations ActSections 4(1), 12, 13, 14(1) and (2), 19(1), 30
  • Industrial Court ActSection 12(3)
  • Industrial Court (Procedure) Rules 2010Rule 16(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rules 13, 19, 23
  • Constitution of KenyaArticles 36 and 41
Jurisdiction invoked
Sections 4, 12, 14, 18 and 20 of the Labour Relations Act 2007; Section 12(3) of the Industrial Court Act 2011; Articles 36 and 41 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, "Wesley Tomno & 10 others v Registrar of Trade Unions & another [2015] KEELRC 708 (KLR)", Case Analysis (2015). Petition (notice of motion dated 26th September 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/708/eng@2015-07-29

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