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ELRCAllowedAppeal dated 3rd June 2016 (not otherwise stated)· [2017] KEELRC 1824 (KLR)

Barnabas Lagat & John Githua Mbate v Registrar of Trade Unions & Attorney General [2017] KEELRC 1824 (KLR)

Employment and Labour Relations Court of Kenya
31 January 2017
3,479 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 the Registrar of Trade Unions cannot block union recruitment certificates by citing existing unions' representation.

What this practically means

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Executive summary

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The appellants, two licensed teachers, sought a Certificate of Recruitment under Section 12 of the Labour Relations Act to recruit members for a proposed trade union, the Kenya Teachers Congress. The Registrar of Trade Unions refused the certificate by letter dated 29th March 2016, reasoning that the targeted sector was already sufficiently represented by existing unions, namely KNUT, KUPPET, KUNOPPET and KUSNET, and that the application failed to meet Section 14 of the Act. The respondents and the interested party, KNUT, defended the refusal, arguing the right to form and join a trade union is not absolute and that existing unions already represented teachers' interests; KNUT alleged the appellants were disgruntled former candidates for union office acting out of selfish motives. The appellants argued that the Registrar could only refuse a certificate under Section 12(3) if the application was defective or the proposed name was confusingly similar to an existing union, and that representation concerns under Sections 13 and 14 arise only at the later registration stage, which follows six months after issuance of a certificate. Justice Hellen Wasilwa agreed, holding that the Registrar's reasons shifted from the Section 12(3) criteria and were premature, based on registration rather than recruitment issues. The court found the refusal unreasonable and not justifiable, declared it null and void, directed the Registrar to issue the Certificate of Recruitment within fourteen days, and allowed the appeal.

Key legal issues

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01

Whether the Registrar could refuse a Certificate of Recruitment on the ground that the sector was already sufficiently represented by existing unions

Holding

No. Under Section 12(3) the only permissible grounds for refusal are a defective application or a name identical or confusingly similar to an existing union. The Registrar's reliance on Section 14 representation concerns was premature and outside her mandate at that stage.

Reasoning

The court examined Section 12 of the Labour Relations Act, which obliges the Registrar to issue a certificate within thirty days unless the application is defective or the name is confusingly similar. The Registrar's letter declined the certificate because existing unions (KNUT, KUPPET, KUNOPPET, KUSNET) already covered the sector. The court held those reasons shift from the Section 12(3) criteria and belong to the later registration stage under Sections 13 and 14, which follows six months after issuance of the certificate. The refusal was therefore unreasonable and unjustifiable.

p. 7
02

Whether the refusal violated the Appellants' constitutional right to form and join a trade union under Article 36

Holding

Effectively yes; the court found the decision not reasonable and justifiable and quashed it, directing issuance of the certificate.

Reasoning

The Appellants argued, relying on Rika J in Japheth Anyira Agura and on freedom-of-association authorities, that the Registrar exceeded her mandate and that any limitation of Article 36 rights must be reasonable and justifiable. The court accepted that the two-tier registration procedure means Section 14 objections arise only at the registration stage, and found the refusal premature and unjustified.

p. 7

Legal principles established

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  • At the certificate-of-recruitment stage under Section 12, the Registrar may only decline on the grounds that the application is defective or that the proposed name is the same as or confusingly similar to an existing union; considerations of sufficient representation belong to the registration stage under Sections 13 and 14.

Court orders

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  1. 1.Declared the Registrar of Trade Unions' decision of 29th March 2016 refusing the Certificate of Recruitment null and void
  2. 2.Directed the Registrar of Trade Unions to issue the Appellants with the Certificate of Recruitment within 14 days of the judgment

Authorities

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Legislation

  • Constitution of KenyaArticle 36
  • Labour Relations ActSection 4
  • Labour Relations ActSections 12(1), 12(2), 12(3), 12(4), 12(5)
  • Labour Relations ActSections 13, 14, 14(1)(d)

Cases cited (5)

  • Japheth Anyira Agura & 6 Others vs. Registrar of Trade Unions
    (2014) eKLR
  • Scientific Research International Technical & Allied Workers Union vs. Kenya Agricultural Research Institute & Another
    (2013) eKLR
  • NTN Pty Ltd and NBN Ltd vs. The State
    (1988) LRC (Const) at 348
  • Charles Salano & 9 Others vs. The Registrar of Trade Unions & Another
    (2015) eKLR
  • Kenya Health Professionals Union (KHPU) vs. Registrar of Trade Unions & Another
    (2015) eKLR
On appeal from
Office of the Registrar of Trade Unions
Application Ref. No. OAK/K009/001/1/2016 dated 7th March 2016
Jurisdiction invoked
Appeal against the decision of the Registrar of Trade Unions under the Labour Relations Act, No. 14 of 2007

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, "Barnabas Lagat & John Githua Mbate v Registrar of Trade Unions & Attorney General [2017] KEELRC 1824 (KLR)", Case Analysis (2017). Appeal dated 3rd June 2016 (not otherwise stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1824/eng@2017-01-31

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