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ELRCPartially AllowedPetition (Application under certificate) filed 4th March 2014· [2015] KEELRC 1591 (KLR)

Francis W Ngariuki & 16 others v Registrar of Trade Unions & 2 others [2015] KEELRC 1591 (KLR)

Employment and Labour Relations Court
23 April 2015
MNMathews N. NdumaWAWasilwa
2,732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a two-year delay in registering a trade union was unreasonable and ordered the government to decide within 30 days.

What this practically means

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Executive summary

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The promoters of the proposed Public Servants Union filed a petition in March 2014 seeking, among other reliefs, a conservatory order restraining the Registrar of Trade Unions from withdrawing the certificate issued under Section 12(1) of the Labour Relations Act, and orders compelling the Registrar to register the Union. The Petitioners had applied for registration in December 2011 after complying with all formal requirements; the Registrar published the application in the Kenya Gazette in February 2012, but over two years later no decision had been communicated. The Registrar attributed the delay to the statutory requirement that she act on the advice of the National Labour Board, which had not yet convened, while the Union of Kenya Civil Servants, joined as an Interested Party, objected on the ground that the proposed Union would be a rival competing for the same constituency. The Court framed three issues: prematurity, violation of rights, and remedy. It held that the Petition was premature because the decision lay with the National Labour Board, an independent statutory body that was not joined as a party, and that any orders against the Registrar alone would be in vain. Although the Court found the delay of over two years inordinate and unreasonable, it noted the Petitioners had failed to demonstrate follow-up efforts and that allegations of conspiracy were speculative. The Petition succeeded only in part: the Attorney General was directed to ensure the application is processed and a decision made by the Board and the Registrar within 30 days, with a report filed in Court. The Respondents were ordered to pay the costs of the suit.

Key legal issues

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01

Whether the Petition was lodged prematurely

Holding

The Petition was premature because the decision lay with the National Labour Board, which was not a party to the suit

Reasoning

The Registrar can only decide on registration after receiving the advice of the National Labour Board under Sections 7(1) of the Labour Institutions Act and 19(1) of the Labour Relations Act. The Board is an independent statutory body that can sue and be sued, and the Petitioners failed to join it or seek relief against it. Orders against the Registrar alone would be in vain since the Registrar must await the Board's advice.

p. 7
02

Whether the Petitioners' rights under Articles 36, 41 and 47 were violated

Holding

The delay of over two years was inordinate and unreasonable, but the violation claim was not fully determined because the Petitioners failed to demonstrate follow-up efforts

Reasoning

The Court accepted that a delay exceeding two years in processing a registration application is inordinate and unreasonable. However, the Petitioners did not plead or prove any follow-up with the Registrar to expedite the application, and their allegation of conspiracy was mere speculation unsupported by tangible evidence. The Court therefore declined to consider the remaining issues at this stage.

p. 6
03

What remedy is available

Holding

An order directing the Attorney General to ensure the application is processed and a decision made within 30 days, with a report filed in Court

Reasoning

Under prayer (f) of the Petition, and given the finding that the delay was inordinate and unreasonable, the Court invoked the Attorney General's role as Principal Legal Adviser to the Government under Article 156(4) to direct that the application be processed by the Board and the Registrar within 30 days, with a report filed in Court.

p. 7

Legal principles established

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  • A delay of more than two years to finalise processing an application for registration of a proposed union is inordinate and unreasonable
  • A petitioner alleging inordinate delay must demonstrate that it took reasonable steps to have the matter expedited
  • The Registrar of Trade Unions must act on the advice of the National Labour Board before deciding on registration of a trade union

Court orders

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  1. 1.Directed the 2nd Respondent (Attorney General) to ensure that the Application for registration by the proposed Public Servants Union is processed and an appropriate decision is made by the National Labour Board and the 1st Respondent within 30 days from the date of judgment
  2. 2.Directed the 2nd Respondent to file a report with the Court
  3. 3.Ordered the Respondents to pay the costs of the suit

Authorities

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Legislation

  • Labour Relations ActSection 12(1)
  • Labour Relations ActSection 12(5)(a) and (b)
  • Labour Relations ActSection 18
  • Labour Relations ActSection 19(1)
  • Labour Relations ActSection 13
  • Labour Relations ActSection 4(1)(d)(f) and (i)
  • Labour Relations ActSecond Schedule
  • Labour Institutions ActSection 31(3)
  • Labour Institutions ActSection 7(1)
  • Constitution of Kenya, 2010Article 36(1)
  • Constitution of Kenya, 2010Article 36(3)(a) & (b)
  • Constitution of Kenya, 2010Article 41(2)
  • Constitution of Kenya, 2010Article 47(1)
  • Constitution of Kenya, 2010Article 156(4)(a) & (b)
Jurisdiction invoked
Article 36, 41 and 47 of the Constitution of Kenya, 2010; prayer (f) of the Petition

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, "Francis W Ngariuki & 16 others v Registrar of Trade Unions & 2 others [2015] KEELRC 1591 (KLR)", Case Analysis (2015). Petition (Application under certificate) filed 4th March 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1591/eng@2015-04-23

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