Dickson Magak Omwaga & another v Attorney General & 2 others [2016] KEELRC 1301 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court forced the Registrar of Trade Unions to register a union's constitutional amendments because her refusal relied on rules that came too late.
What this practically means
#Executive summary
#Key legal issues
#Compliance with the procedure for amending a trade union constitution under Section 27 of the Labour Relations Act
The resolution to amend was lawfully made on 16.10.2015 and notice was submitted on 27.10.2015, within the 14 days required by Section 27(3)
Section 27(3) requires notice of a change of constitution to be submitted to the Registrar within fourteen days of the resolution. The resolutions were made on 16.10.2015 at the Special Delegates Meeting at Machakos University College and the documents were forwarded on 27.10.2015 and received on 28.10.2015, hence within the requisite time.
Whether the Registrar had valid reasons to refuse registration of the amendments
The Registrar had no valid reason; the objections were out of time and the refusal relied on an administrative circular that could not apply retrospectively
The gazette notice was issued on 13.11.2015 with 21 days for objections expiring on 5.12.2015. The objection by Evans Wafula was dated 15.12.2015, ten days late, and Ndunda's letter was not annexed. With no valid objection, the Registrar was obliged to register the change under Section 27(5) and (6) or give written reasons under Section 27(9). The circular of 25.11.2015 could not retrospectively defeat an application filed on 27.10.2015, and the refusal violated Articles 41(4) and 47 of the Constitution.
Whether the proposed amendments are prejudicial or beneficial to the parties
The amendments are beneficial, correcting anomalies and aligning the union's operations with the Constitution of Kenya 2010 and Section 34(2)(b) of the Labour Relations Act
The 2nd Respondent herself confirmed the amendments were valid in view of the devolved administrative changes introduced by the 2010 Constitution, that the current constitution would not be the proper tool for the upcoming elections, and that its organizational structure was broad and overstretched. The amendments cure a drafting error and bring the union into compliance with Section 34(2)(b).
Legal principles established
#- A circular issued by the Registrar of Trade Unions cannot operate retrospectively so as to defeat an application for registration of constitutional amendments already submitted before the circular
- Where an objection to a change of a trade union constitution is lodged outside the 21-day gazette notice period, it is inconsequential and the Registrar is obliged to register the change
- Refusal by the Registrar to register proposed amendments without valid reasons infringes the trade union's right under Article 41(4) of the Constitution and the right to fair administrative action under Article 47
Court orders
#- 1.The decision of the Registrar of Trade Unions dated 9.12.2015 refusing to register the amendments is quashed
- 2.The Registrar of Trade Unions is directed to immediately register the amendments to the 3rd Respondent's Constitution as submitted on 27.10.2015 and received on 28.10.2015, within 7 days
- 3.The 3rd Respondent shall hold its elections within the ambit of the new Constitution with the new changes registered, and may proceed with its elections after issuance of new timelines in line with the Trade Union National Elections
- 4.The 1st and 2nd Respondents to pay costs of the appeal
- On appeal from
- The Registrar of Trade Unions (decision under Section 27, Labour Relations Act, appealed directly to the Industrial Court)
- Jurisdiction invoked
- Section 27 of the Labour Relations Act - appeal by any person aggrieved by a decision of the Registrar of Trade Unions to the Industrial Court within thirty days
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Magak Omwaga & another v Attorney General & 2 others [2016] KEELRC 1301 (KLR)", Case Analysis (2016). ELRC Appeal No. 1 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1301/eng@2016-04-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.