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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1738 (KLR)

John Githua Mbate& 2 others v Registrar of Trade Unions & another [2018] KEELRC 1738 (KLR)

Employment and Labour Relations Court of Kenya
20 March 2018
3,705 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 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

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Executive summary

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This is a first-instance appeal to the Employment and Labour Relations Court at Nyeri against the Registrar of Trade Unions' refusal of 30th October 2017 to register the proposed union, Kenya Teachers Congress. The Appellants, promoters and interim officials of the proposed union, contended that the refusal was ultra vires the Constitution and infringed their rights under Articles 36 and 41. The Registrar opposed, relying on Section 14(1)(d)(i) of the Labour Relations Act, asserting that teachers are already sufficiently represented by KNUT, KUPPET, KUNOPPET and KUSNET, and that the rights claimed are subject to Article 24 limitations. The court framed three issues: whether the Registrar subordinated herself to the National Labour Board; whether the refusal violated Articles 36 and 41; and costs. Holding that Section 19(1) requires consultation, not subordination, and noting the 13-day delay before communicating the refusal, the court found the decision was the Registrar's own. Applying the Court of Appeal's decision in Charles Salano and Rika J's sufficiency-of-representation test, the court held labour rights are not absolute and the limitation was reasonable and justifiable in an open democratic society, given the evident sufficiency of representation of teachers by existing unions. The appeal was dismissed with costs to the Respondents, dated and delivered at Nyeri on 20th March 2018.

Key legal issues

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01

Whether the Registrar subordinated her statutory duty to the National Labour Board contrary to Section 19(1) of the Labour Relations Act

Holding

The Registrar did not subordinate herself; she consulted the Board as required but the decision to refuse registration was hers.

Reasoning

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.

p. 4
02

Whether the refusal to register the proposed union infringed Articles 36 and 41 of the Constitution

Holding

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.

Reasoning

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.

p. 4
03

Costs of the appeal

Holding

Costs awarded to the Respondents as the appeal lacked merit.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 24, 24(1), 24(2)(b), 25, 36, 36(1), 36(2), 41, 41(2)(c)
  • Labour Relations Act, 2007Sections 14(1)(d), 14(1)(d)(i), 14(2), 19, 19(1), preamble

Cases cited (10)

  • Collymore v Attorney General
    [1970] AC 532
  • Trinidad Islandwide Cane Farmers Association Inc. v Seereeram
    [1975] WLR 329
  • Kenya Concrete, Structural, Ceramics, Tiles, Wood Plys and Interior Designs Workers Union v Registrar of Trade Unions & Another
    [2013] eKLR
  • Seth Panyako & 5 Others v Attorney General & 2 Others
    [2013] eKLR
  • David Benedict Omulama & 8 Others v Registrar of Trade Unions & Another
    [2014] eKLR
  • Justus Aloo Ogeka & 6 Others (as interim officials of Kenya National Union of Co-operative Staff) v Registrar of Trade Unions & 2 Others
    [2016] eKLR
  • Charles Salano & 9 Others (proposers & promoters of Kenya Supermarkets Workers Unions KESMWU) v The Registrar of Trade Unions & Another
    [2017] eKLR
  • Kenya Union of Medical Professionals And Allied Staff (KUMPAS) Represented By Its Promoters (Seth Panyako & 7 Others) v Registrar Of Trade Unions & Another
    [2016] eKLR
  • Wesly Tomno & 97 others v Registrar of Trade Unions
    Employment and Labour Relations Court Petition 61 of 2014 (Unreported)
  • Civil Appeal 176 of 1996
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

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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, "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.