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ELRCPartially AllowedAppeal (Mombasa) against Notification of Refusal of Registration dated 20th April 2016· [2016] KEELRC 128 (KLR)

Dominic Ngolo & 7 others [Suing on their behalf and on behalf of the proposed Kenya Bodaboda, Tuktuk and Taxi Workers Union] v Registrar Of Trade Unions [2016] KEELRC 128 (KLR)

Industrial Court (Employment and Labour Relations Court)
16 December 2016
3,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled that bodaboda, tuktuk and taxi workers have a constitutional right to form their own trade union, overturning the Registrar's refusal.

What this practically means

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Executive summary

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The Appellants, promoters and interim officials of the proposed Kenya Bodaboda, Tuktuk and Taxi Workers Union, appealed to the Industrial Court at Mombasa against the Registrar of Trade Unions' Notification of Refusal of Registration dated 20th April 2016. They had complied with Sections 12 and 18 of the Labour Relations Act, obtained a recruitment certificate, recruited members nationwide, and no union or employers' organisation objected to the Legal Notice inviting objections. The Registrar refused registration on four grounds: failure to identify employers in the sector, inability to sign recognition agreements or CBAs with individuals, absence of clear terms and conditions of service, and a suggestion that the sector form an association. Before the Court, the Respondent additionally relied on TAWU as sufficiently representing the sector. The Court held the Board's role is advisory only and the Registrar wrongly allowed the Board to make the decision; that disclosure of specific employers is not a statutory requirement and is unrealistic in the informal economy; that collective bargaining is only one of many objects of a trade union; and that the belated invocation of TAWU, which never objected, was improper. Relying on Articles 36 and 41 of the Constitution and ILO materials on informal economy workers, the Court found the refusal unjustified and an infringement of freedom of association. The appeal was allowed, the union was granted registration from the date of judgment, and the Registrar was directed to enter it in the appropriate register forthwith. No other orders were made and no costs order appears in the judgment.

Key legal issues

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01

Compliance with statutory registration requirements

Holding

The Appellants satisfied all requirements for registration under Sections 12 and 18 of the Labour Relations Act, including payment of the prescribed fee and submission of the union constitution, attendance register and minutes.

Reasoning

The court found the Appellants did everything the law requires: they obtained a certificate to recruit members, recruited a large membership across the country, submitted the application with constitution, certified minutes and attendance register, and paid Kshs. 15,000. No trade union or employers' organisation lodged any objection when the invitation was published under Section 14(1).

p. 3
02

Division of authority between Registrar and National Labour Board

Holding

The Board's role is advisory only; the decisional and executive function vests in the Registrar, who must make an independent and impartial decision upon consultation with the Board.

Reasoning

Section 7(1) of the Act makes the Board advisory on policy matters; it has no decisional or executive authority. Section 19 requires the Registrar to be satisfied upon consulting the Board, not to obtain the Board's approval. Here the Registrar told the Appellants that the Board did not approve, meaning the Board effectively made the decision, contrary to the statutory scheme and prior authorities.

p. 5
03

Adequacy of the grounds of refusal

Holding

The grounds of refusal — failure to disclose employers, failure to show whom recognition agreements/CBAs would be signed with, absence of clear terms and conditions of service, and suggestion to form an association — had no legal or policy justification.

Reasoning

The Act does not require disclosure of specific employers, which is especially unrealistic in the informal economy. Trade unions exist for many purposes beyond collective bargaining. Terms and conditions of service are not rooted in the Labour Relations Act, and the Registrar plays no role in choosing the form of association. Any additional disclosure should have been sought under Section 18(3)(a) before decision, which was not done.

p. 5
04

Belated reliance on TAWU

Holding

The Respondent could not justify refusal on the ground that TAWU sufficiently represents the sector when this ground was absent from the Notification of Refusal and no objection was lodged by TAWU.

Reasoning

TAWU was mentioned for the first time in the Reply to the Memorandum of Appeal and submissions, not in the Notification of Refusal or the forwarding letter. TAWU and other unions were invited to object under the Legal Notice and none did. Other transport unions, including informal-sector unions, had been registered after TAWU, undermining the claimed representation rationale.

p. 4
05

Freedom of association of informal economy workers

Holding

Articles 36 and 41 of the Constitution protect informal sector workers' right to form trade unions, and registration under Section 4 of the Act is not to be withheld unreasonably.

Reasoning

The court, supported by ILO materials, the ITF Report and scholarly studies, held that informal and precarious workers must be encouraged to organize for social protection and a common voice, and that denial of registration without justification infringed the Appellants' freedom of association.

p. 7

Legal principles established

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  • The National Labour Board's role is advisory; the decisional and executive authority in registration of trade unions vests in the Registrar of Trade Unions, who must not let the Board determine an application.
  • An applicant for registration of a trade union is not required to reveal who the specific employers in the sector are, particularly in the informal economy where employment relationships are hidden and precarious.
  • Collective bargaining is only one of many objects of a trade union; refusal of registration on the ground that an applicant has not shown whom they would collectively bargain with is an unduly restrictive view of freedom of association.
  • The forms of employment relationships are not decisive in determining whether to allow registration of an informal sector trade union; workers in the informal economy must not be denied freedom of association.

Court orders

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  1. 1.Appeal against the decision of the Registrar contained in the Notification of Refusal of Registration dated 20th April 2016 is allowed
  2. 2.The Kenya Bodaboda, Tuktuk and Taxi Workers Union is granted registration from the date of the Judgment
  3. 3.The Registrar of Trade Unions shall enter the name and details of the Appellants' proposed Trade Union in the appropriate register forthwith
  4. 4.No other orders

Authorities

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Legislation

  • Labour Relations ActSection 12
  • Labour Relations ActSection 14[1]
  • Labour Relations ActSection 18, including Section 18[3][a]
  • Labour Relations ActSection 19
  • Labour Relations ActSection 20
  • Labour Relations ActSection 4, including Section 4[1]
  • Labour Relations ActSection 7[1]
  • Labour Relations ActSection 30
  • Labour Institutions Act, Number 12 of 2007Section 31
  • Labour Institutions ActSection 44[b]
  • Constitution of KenyaArticles 36, 41 and 24
  • ILO Convention 87
  • ILO Resolution Concerning Decent Work and the Informal Economy (International Labour Conference, 2002)

Cases cited (3)

  • Kenya Concrete, Structural, Ceramics Tiles, Wood Plys and Interior Designs Workers Union v. The Registrar of Trade Unions & Kenya Building, Construction, Timber, Furniture and Allied Industries Employees Union
    Industrial Court at Nairobi Appeal Number 10 of 2011
  • Seth Panyako & 5 others v. The Attorney General & 3 others
    Industrial Court at Nairobi Appeal Number 50 of 2012
  • Wesley Tomno v Registrar of Trade Unions
    Industrial Court at Nairobi Petition Number 61 of 2014
On appeal from
Registrar of Trade Unions (administrative decision)
Notification of Refusal of Registration dated 20th April 2016
Jurisdiction invoked
Section 30 of the Labour Relations Act, No. 14 of 2007 (appeals from decisions of the Registrar of Trade Unions to the Employment and Labour Relations Court)

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, "Dominic Ngolo & 7 others [Suing on their behalf and on behalf of the proposed Kenya Bodaboda, Tuktuk and Taxi Workers Union] v Registrar Of Trade Unions [2016] KEELRC 128 (KLR)", Case Analysis (2016). Appeal (Mombasa) against Notification of Refusal of Registration dated 20th April 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/128/eng@2016-12-16

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