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)
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
#Key legal issues
#Whether refusal to register the proposed union infringed the Appellants' rights under Articles 36 and 41
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.
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.
Whether the Registrar subordinated his statutory duty to the National Labour Board
Yes - the Registrar abdicated his statutory duty by merely communicating the National Labour Board's decision.
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.
Whether the 1965 Government policy of fewer but stronger trade unions justifies refusal
No - the policy is outdated and not in sync with current sector and industry developments in the constitutional age.
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.
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.The appeal against the decision of the Registrar of Trade Unions refusing to register Kenya National Union of Cooperatives Staff is allowed
- 2.The objections by the 1st and 2nd Interested Parties are rejected
- 3.The Kenya National Union of Cooperatives Staff is granted registration from the date of the Judgment
- 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.Each party will bear their own costs
- 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.