John Githua Mbate& 2 others v Registrar of Trade Unions & another [2018] KEELRC 1738 (KLR)
The bottom line
#Kenya's Employment Court upheld the refusal to register a new teachers' union because existing unions already represent teachers, confirming union rights can be limited.
What this practically means
#Executive summary
#Key legal issues
#Whether the Registrar subordinated her statutory duty to the National Labour Board contrary to Section 19(1) of the Labour Relations Act
The Registrar did not subordinate herself; she consulted the Board as required but the decision to refuse registration was hers.
Section 19(1) requires the Registrar to consult the National Labour Board, not to act as its surrogate. The letter forwarding the refusal showed the Board advised against registration on 17th October 2017, and the Registrar communicated the refusal 13 days later. The delay demonstrates she was not a rubber stamp; the decision to refuse was hers and she bore the responsibility for it.
Whether the refusal to register the proposed union infringed Articles 36 and 41 of the Constitution
No infringement; the refusal was a reasonable and justifiable limitation under Article 24 since teachers are already sufficiently represented by KNUT, KUPPET, KUNOPPET and KUSNET.
Applying the Court of Appeal decision in Charles Salano, the right to associate and form a trade union is not among the unlimitable rights under Article 25 and is subject to Article 24. Section 14(1)(d)(i) of the Labour Relations Act bars registration where existing unions sufficiently represent the sector. On Rika J's test, the volume of cases, CBAs and strikes involving KNUT and KUPPET demonstrates sufficiency of representation.
Costs of the appeal
Costs awarded to the Respondents as the appeal lacked merit.
Having found that the Registrar's refusal was lawful and a justifiable limitation of the Appellants' rights, the appeal failed in its entirety and the normal rule of costs following the event applied.
Legal principles established
#- Labour rights under Articles 36 and 41 are not absolute and may be limited under Article 24 by a statutory provision such as Section 14(1)(d)(i) of the Labour Relations Act
- The Registrar of Trade Unions bears the ultimate responsibility for registration decisions and consultation with the National Labour Board does not amount to subordination where she exercises her own judgment
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the Respondents
- On appeal from
- Registrar of Trade Unions
- Application for registration of Kenya Teachers Congress refused by letter and Form D dated 30th October 2017
- Jurisdiction invoked
- Statutory appeal against the decision of the Registrar of Trade Unions under the Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Githua Mbate& 2 others v Registrar of Trade Unions & another [2018] KEELRC 1738 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1738/eng@2018-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.