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ELRCDismissedAppeal dated 3rd November 2014 (Industrial Court appeal against refusal of trade union registration)· [2016] KEELRC 173 (KLR)

Kenya Revenue Authority & 2 othera v Registrar of Trade Unions & 3 others [2016] KEELRC 173 (KLR)

Employment and Labour Relations Court (Industrial Court of Kenya)
25 November 2016
2,522 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court upheld the Registrar's refusal to register KEREVU because the union failed to prove it offered anything distinct from the existing union.

What this practically means

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Executive summary

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The appellant union, Kenya Revenue Authority Employees Union (KEREVU), appealed under section 20 of the Labour Relations Act, 2007 against the Registrar of Trade Unions' notice of refusal dated 2nd October 2014 to register it. The Registrar had refused registration on the grounds that BIFU was sufficiently representative of the interests concerned and that Civil Appeal No. 255 of 2010 on similar issues was pending. The court framed four issues: compliance of the application with law and procedure, fair hearing, soundness of the reasons for rejection, and costs. On the first issue, the court found the application complied with sections 12, 13 and 14(1)(a), (b) and (c) of the Act. On fair hearing, applying Maureen Onyango J. in Munir Masound, the court held the Registrar's process - gazettement, invitation of objections, service on the applicant, written representations and referral to the National Labour Board - satisfied due process, and that an oral hearing was not necessary. On the substantive issue, applying Seth Panyako, the court held the burden rested on the applicant to prove, on a balance of probability, suitable provisions protecting sectoral interests under section 14(2). The appellants did not demonstrate any peculiar sectoral advantage over BIFU, and the pending appeal was a reasonable factor for the Registrar to consider. The refusal was lawful and did not violate Article 41(2)(c). The appeal was dismissed with no order as to costs, the court noting the pending Court of Appeal matter would largely resolve the dispute.

Key legal issues

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01

Compliance with form and procedure of the registration application

Holding

The application complied with sections 12, 13 and 14(1)(a), (b) and (c) of the Labour Relations Act, 2007

Reasoning

The Registrar raised no issue with the form of the application. The court was satisfied the union had recruited the requisite members, obtained a certificate from the Registrar, applied within six months of the certificate, adopted a compliant constitution and had a registered office and postal address.

p. 4
02

Whether the appellants received a fair hearing

Holding

Yes; the Registrar complied with the requirements of due process, and failure to hold an oral hearing did not negate the process

Reasoning

Following Maureen Onyango J. in Munir Masound, the court held it is sufficient that the Registrar gazettes the application, invites objections, serves them on the applicant, allows written representations, refers the matter to the National Labour Board and communicates the decision timeously. The appellant received the objections and made written submissions.

p. 4
03

Whether the reasons for refusal were sound in fact and law

Holding

Yes; the Registrar did not err, since the appellants did not prove a peculiar sectoral advantage over BIFU under section 14(2) of the Labour Relations Act

Reasoning

Applying Seth Panyako, the court held the burden lay on the applicant to show suitable sectoral provisions under section 14(2). The representations and the appellant's constitution disclosed no peculiar sectoral advantage vis-a-vis BIFU. The Registrar's reference to the pending Civil Appeal No. 255 of 2010 was a reasonable relevant factor, and refusal did not violate Article 41(2)(c).

p. 6

Legal principles established

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  • It is sufficient due process for the Registrar to gazette the intended registration, invite and serve objections, allow written representations, refer the matter to the National Labour Board, and communicate the decision timeously; an oral hearing is not required
  • The onus of proving suitable provisions to protect and promote the respective sectoral interests of employees rests on the applicant union on a balance of probability

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs since the matter dealt with an issue of great public interest

Authorities

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Legislation

  • Labour Relations Actsection 20
  • Labour Relations Actsections 12, 13 and 14(1)(a), (b), (c), (d), (f) and 14(2)
  • Constitution of Kenya, 2010Article 41(2)(c)

Cases cited (6)

  • Banking Authority and Finance Union vs Kenya Revenue Authority
    (2008) eKLR
  • Misc. Civil Appl. No. 1683 of 2004, BIFU vs Kenya Revenue Authority (ruling of Nduru J., delivered 22nd September 2008)
  • Misc. Appl. No. 534 of 2004 (Tax Collectors' Union application, Ojwang J.)
  • Munir Masound and 6 others -Vs- Registrar of Trade Unions and another
    Industrial Court of Kenya Appeal No. 2 of 2011
  • Seth Panyako and 5 others -Vs- the Attorney General & 4 others
    [2013] eKLR, Industrial Court Appeal Number 5 of 2012
  • Civil Appeal No. 255 of 2010 (pending before the Court of Appeal)
On appeal from
Registrar of Trade Unions
Notice of refusal dated 2nd October 2014
Jurisdiction invoked
Appeal under section 20 of the Labour Relations Act, 2007 against refusal of registration of a trade union

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, "Kenya Revenue Authority & 2 othera v Registrar of Trade Unions & 3 others [2016] KEELRC 173 (KLR)", Case Analysis (2016). Appeal dated 3rd November 2014 (Industrial Court appeal against refusal of trade union registration). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/173/eng@2016-11-25

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