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ELRCPartially AllowedJudicial Review No 3 of 2014· [2015] KEELRC 820 (KLR)

Republic v Mrs B W Gachegu & 6 others Exparte Maina Mbui & 2 others [2015] KEELRC 820 (KLR)

Employment and Labour Relations Court
26 June 2015
MNMathews Nderi Nduma
1,281 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court ruled that trade union officials cannot lawfully change a union's register when they were never validly appointed under the current law.

What this practically means

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Executive summary

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This was a judicial review application brought pursuant to leave granted by Nyamu J on 30 January 2009, challenging the Registrar of Trade Unions, Assistant Registrar and Senior Assistant Registrar's effecting of changes to the national officials register of the Kenya Union of Commercial Food and Allied Workers Union through letters and affidavits dated 30 July 2008, 31 July 2008 and 16 September 2008, which removed Agapio Muriuki Antony and Benson Irungu Maina from office. The court framed three issues: the validity of the Respondents' tenure, the effect of their action, and available remedies. The court held that the Labour Relations Act 2007 repealed the Trade Disputes Act without transitional provision for the Respondents, who were appointed under the repealed Act, while the Labour Institutions Act required fresh appointment under Section 63. The Minister only appointed the 3rd Respondent as Acting Registrar on 12 March 2009, confirming him on 20 October 2009. The Respondents therefore acted without jurisdiction in 2008, and their actions were null and void. Applying Council of Civil Service Unions and Municipal Council of Mombasa v Republic, the court confined itself to process, not the merits of the union's internal decision. Certiorari was granted quashing the registration of the changes, with costs to the Respondents. Prohibition was refused as overtaken by events following the appointments, and the court directed the removed officials to pursue damages in an ordinary civil suit, noting it lacked power to award damages in judicial review.

Key legal issues

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01

Validity of the Respondents' exercise of statutory power to effect changes in the union register

Holding

The Respondents acted without jurisdiction; their actions removing the 2nd and 3rd Interested Parties were illegal, null and void.

Reasoning

The Labour Relations Act 2007 repealed the Trade Disputes Act under which the Respondents had been appointed, but made no transitional provision continuing them in office. The Labour Institutions Act provided for fresh appointment under Section 63, which the Minister only made on 12 March 2009. The changes to the register in 2008 therefore occurred when the offices were vacant and the Respondents held no lawful authority.

p. 2
02

Whether the court may inquire into the merits of the union's decision to remove the officials

Holding

No; judicial review examines the decision-making process, not the merits. The Delegates Conference of 21 June 2008 was immaterial to whether the Respondents acted lawfully.

Reasoning

The court adopted the test in Municipal Council of Mombasa v Republic & Umoja Consultants Ltd: review courts examine jurisdiction, hearing, and relevant considerations, and do not sit as a court of appeal over the decision maker. Whether there was sufficient evidence for the union's internal decision was outside the scope of the application.

p. 3

Legal principles established

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  • Where officers of a statutory office were appointed under a repealed statute and the successor statute provides for fresh appointment, they cannot lawfully exercise statutory authority until properly appointed; actions taken without jurisdiction are null and void.
  • Judicial review is concerned with the decision-making process, not the merits of the decision.

Court orders

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  1. 1.An order of Certiorari to remove into the court and quash the decision of the 1st, 2nd and 3rd Respondents made and manifested through letters and affidavits dated 30th July 2008, 31st July 2008 and 16th September 2008 registering change of officials of the 1st interested party
  2. 2.Costs of the application to be paid by the Respondents

Authorities

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Legislation

  • Labour Relations ActSection 84
  • Trade Disputes Act (repealed)Sections 5 and 6
  • Labour Institutions Act (No. 12 of 2007)Section 63

Cases cited (3)

  • Republic vs Chief Magistrate Milimani Commercial Court and 2 Others Ex-parte Violet Ndanu Mutinda and 5 Others
    [2014] eKLR
  • Council of Civil Unions Vs Minister for the Civil Service
    (1985) AC 2
  • Municipal Council of Mombasa Vs Republic and Umoja Consultants Ltd
    Civil Appeal No 185 of 2001
Jurisdiction invoked
Judicial review jurisdiction under the Labour Relations Act and applicable law, pursuant to leave granted by Nyamu J on 30 January 2009

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, "Republic v Mrs B W Gachegu & 6 others Exparte Maina Mbui & 2 others [2015] KEELRC 820 (KLR)", Case Analysis (2015). Judicial Review No 3 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/820/eng@2015-06-26

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