Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedAppeal from the decision of the Registrar of Trade Unions dated 27th November 2012· [2016] KEELRC 1798 (KLR)

Justus Aloo Ogeka & 6 others (as Interim officials of Kenya National Union of Cooperatives Staff) v Registrar of Trade Unions & 2 others [2016] KEELRC 1798 (KLR)

Employment and Labour Relations Court
22 January 2016
3,544 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court forced the Registrar of Trade Unions to register a new cooperative-sector union, ruling his refusal unfairly limited workers' freedom of association.

What this practically means

#

Executive summary

#
This was an appeal to the Employment and Labour Relations Court at Nairobi against the Registrar of Trade Unions' decision of 27th November 2012 refusing to register the Kenya National Union of Cooperatives Staff. The Appellants argued the refusal violated their rights under Articles 36 and 41 of the Constitution, that the Registrar abdicated his statutory duty to the National Labour Board, and that the refusal was unfair and unjustified. The Registrar maintained that KUCFAW and BIFU, the Interested Parties, adequately covered the intended membership and that registration should follow industrial/sector lines per Section 14 of the Labour Relations Act and the Industrial Relations Charter. KUCFAW relied on its constitutional rule and 20 CBAs with cooperative societies; BIFU disputed coverage of Saccos. The Court framed three issues: infringement of constitutional rights; adequacy of coverage by the Interested Parties; and the Registrar's subordination to the National Labour Board. Holding that Article 41(2) rights are subject to Article 24 limitation, the Court nonetheless found the limitation unjustified: the cooperative sector is a distinct, specialist sector not adequately covered by either Interested Party, the 1965 amalgamation policy is outdated, and the Registrar merely relayed the Board's decision, a serious abdication of statutory duty, without considering the Appellants' response to the objection. The appeal was allowed, the Interested Parties' objections rejected, registration was granted with directions to issue a certificate forthwith, and each party was ordered to bear its own costs.

Key legal issues

#
01

Whether refusal to register the proposed union infringed the Appellants' rights under Articles 36 and 41

Holding

The right under Article 41(2) is not absolute and is subject to Article 24 limitation, but the Registrar's refusal was not a justifiable limitation because it was not exercised judiciously or fairly.

Reasoning

The Court examined the reason for the refusal: that KUCFAW adequately covered the cooperative sector. The Court found the cooperative sector to be a distinct, specialist sector not adequately covered by either Interested Party, and noted the Registrar failed to consider the Appellants' response to the objection. The limitation was therefore not reasonable or justifiable.

p. 7
02

Whether the Registrar subordinated his statutory duty to the National Labour Board

Holding

Yes - the Registrar abdicated his statutory duty by merely communicating the National Labour Board's decision.

Reasoning

Sections 19(1) of the Labour Relations Act and 31(1) and 31(3) of the Labour Institutions Act place the registration duty on the Registrar, with the Board acting only in an advisory capacity. The refusal letter gave the impression the Registrar was acting on the Board's instructions, a serious abdication which must be discouraged.

p. 7
03

Whether the 1965 Government policy of fewer but stronger trade unions justifies refusal

Holding

No - the policy is outdated and not in sync with current sector and industry developments in the constitutional age.

Reasoning

The Court held that any limitation of rights in the constitutional era must be justifiable. Judicial notice was taken of institutional and legal developments in the cooperative sector, including SASRA and deposit-taking Sacco licensing, demonstrating the sector's distinct and growing character.

p. 6

Legal principles established

#
  • The statutory duty to register and regulate trade unions lies with the Registrar of Trade Unions; the National Labour Board's role is advisory only.
  • A limitation of the freedom of association under Section 14 of the Labour Relations Act must be effected judiciously and fairly.
  • The right to form a trade union under Article 41(2) is subject to limitation under Article 24 of the Constitution.

Court orders

#
  1. 1.The appeal against the decision of the Registrar of Trade Unions refusing to register Kenya National Union of Cooperatives Staff is allowed
  2. 2.The objections by the 1st and 2nd Interested Parties are rejected
  3. 3.The Kenya National Union of Cooperatives Staff is granted registration from the date of the Judgment
  4. 4.The Registrar of Trade Unions is directed to issue the Appellants with a certificate of registration and enter the name and particulars of the Trade Union in the appropriate register forthwith
  5. 5.Each party will bear their own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 36; Article 41(2); Article 24(1) and (2)
  • Labour Relations ActSection 4(1); Section 14; Section 19(1); Section 12
  • Labour Institutions ActSection 31(1); Section 31(3)
  • Trade Unions Actnot specified
  • Cooperative Societies Actamendments referenced
  • Sacco Societies (Deposit-Taking Sacco Business) Regulations, 2010Regulation 8(1)
  • Industrial Relations Charter (1984)guidelines on registration of trade unions on industrial/sector lines

Cases cited (3)

  • Banking Insurance and Finance Union (K) v Kenya Bankers (Employers) Association and Kenya Union of Commercial Food and Allied Workers
    Cause No. 75 of 1999
  • Seth Panyako & 5 Others v Attorney General & 2 Others
    [2013] eKLR
  • Dishon Angoya & 6 Others v Registrar of Trade Unions
    Appeal No. 10 of 2011
On appeal from
Registrar of Trade Unions
Application for registration of Kenya National Union of Co-operatives staff dated 4th July 2011
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over decisions of the Registrar of Trade Unions under the Labour Relations Act and Labour Institutions Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Justus Aloo Ogeka & 6 others (as Interim officials of Kenya National Union of Cooperatives Staff) v Registrar of Trade Unions & 2 others [2016] KEELRC 1798 (KLR)", Case Analysis (2016). Appeal from the decision of the Registrar of Trade Unions dated 27th November 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1798/eng@2016-01-22

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