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ELRCDismissedNot stated in judgment· [2017] KEELRC 1854 (KLR)

Nickson Kunyu Mbura & 6 others v Registrar of Trade Unions & 4 others [2017] KEELRC 1854 (KLR)

Employment and Labour Relations Court
13 January 2017
OMOnesmus Makau
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 a new trade union where existing unions already represent the sector.

What this practically means

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Executive summary

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The appellants, promoters of the proposed Kenya Basic Metal Workers Union (KBMWU), appealed against the respondent Registrar of Trade Unions' refusal to register the union. They had applied for registration on 12.5.2016 to represent employees in the Basic Metal Work Industry. The Registrar received objections from the first interested party citing duplication of trade unions and likely disharmony, and after referring the application and objections to the National Labour Board, was advised to reject the application because workers in the sector were already adequately represented by AUKMW, KEWU and KETAWU. The interested parties, all registered unions in the sector with recognition agreements and CBAs, opposed the appeal. The appellants argued their constitutional rights under Articles 36(1) and 41 had been infringed, that the Registrar failed to consult the Labour Board, and that their union targeted the neglected jua kali sector not covered by existing unions' constitutions. The court framed two issues: whether the refusal was lawful and justified, and whether the reliefs should issue. Holding that the right to form a trade union under Article 41(2)(c) is subject to Article 24's limitation clause, the court found section 14(1)(d)(i) of the Labour Relations Act a reasonable limitation. On the evidence, the appellants failed to prove on a balance of probability that the sector was not sufficiently represented, and the proposed union's Rule 3 showed it intended to cover the whole basic metal industry, contradicting the jua kali claim. The appeal was dismissed with no orders as to costs.

Key legal issues

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01

Whether refusal to register the proposed union was lawful and justified

Holding

The refusal was lawful and justified; the Basic Metal Works sector was already sufficiently represented by existing registered unions

Reasoning

The court found that several unions including the first and fourth interested parties, KAAWU, KETAWU and KRWU already represent all categories of workers in the sector. The appellants failed to prove on a balance of probability that the intended members were not sufficiently represented. The proposed union's Rule 3 showed membership would be drawn from the whole basic metal industry, not merely the jua kali sector, and registration would create disharmony and unhealthy competition for members.

p. 3
02

Whether section 14(1)(d)(i) of the LRA unconstitutionally limits the right to form a trade union

Holding

The limitation is reasonable and justifiable under Article 24 of the Constitution

Reasoning

Article 41(2)(c) grants every worker the right to form, join or participate in a trade union, but that right is subject to Article 24's limitation clause. Section 14(1)(d)(i) of the LRA limits the right without derogating from its spirit and letter, and the limitation is reasonable in an open and democratic society, protecting the rights of existing unions and their members.

p. 3

Legal principles established

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  • Section 14(1)(d)(i) of the Labour Relations Act, which bars registration of a trade union for a sector already sufficiently represented by a registered union, is a reasonable and justifiable limitation of the Article 41(2)(c) right to form or join a trade union

Court orders

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  1. 1.The appeal is dismissed with no orders as to costs.

Authorities

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Legislation

  • Constitution of KenyaArticle 36(1)
  • Constitution of KenyaArticle 41(1)(c) & (5), 41(2)(c)
  • Constitution of KenyaArticle 24
  • Labour Relations ActSection 4(1)(a)
  • Labour Relations ActSection 14(1)(d)(i)
Jurisdiction invoked
Appeal against the Registrar of Trade Unions' refusal to register a trade union under the Labour Relations Act (specific provision not stated in the judgment)

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, "Nickson Kunyu Mbura & 6 others v Registrar of Trade Unions & 4 others [2017] KEELRC 1854 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1854/eng@2017-01-13

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