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ELRCDismissedAppeal No. 17 of 2014· [2018] KEELRC 1757 (KLR)

Kenya Union of Courtier and Allied Workers represented by its Promoters & 4 others v Registrar of Trade Unions & another [2018] KEELRC 1757 (KLR)

Employment and Labour Relations Court of Kenya
30 May 2018
HWHellen S. Wasilwa
2,755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court confirmed the Registrar can refuse a new trade union where an existing union already represents workers in the same sector.

What this practically means

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Executive summary

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The Appellants, promoters of the proposed Kenya Union of Courier and Allied Workers, appealed against the Registrar of Trade Unions' decision of 30 October 2014 declining to issue them a pre-registration certificate under Section 12 of the Labour Relations Act, 2007. They sought orders to squash the Registrar's decision, compel issuance of the certificate, and bar the Registrar from citing the existence of the Communication Workers Union (the 2nd Respondent) as a ground for refusal, arguing that the 2nd Respondent had 0% membership in the two largest private courier employers, G4S and Fargo Courier, and that over 3000 workers were unable to exercise freedom of association. The Registrar maintained that Section 14 of the Act barred registration where existing unions — the Communication Workers Union, the Kenya National Private Security Workers Union and the Transport Workers Union — already represented the sector, and that the Appellants had begun operating before certification contrary to Sections 12 and 23(4). Although the Court, on a literal reading of Section 12, initially considered the refusal premature since Section 14 governs registration rather than establishment, it held itself bound by the Court of Appeal's decision in Civil Appeal No. 19/2016 that Sections 12, 13 and 14 must be read conjunctively. Finding that the Registrar had considered the two provisions conjunctively, the Court dismissed the appeal and made no order as to costs.

Key legal issues

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01

Whether the Registrar was justified in refusing a pre-registration certificate by relying on Section 14 of the Labour Relations Act when the application was made under Section 12

Holding

Although the Court initially viewed the refusal as premature because Section 14 deals with registration rather than establishment, it was bound by the Court of Appeal's direction that Sections 12, 13 and 14 be read conjunctively, and therefore found the Registrar's decision justified.

Reasoning

The Court observed that Section 12(3) contains only limited grounds for declining a certificate, and noted the ELRC trend (Omulama; Mbura) allowing pre-registration. However, it upheld the doctrine of precedent, following a Court of Appeal decision holding that the three provisions must be read together, so the Registrar lawfully considered existing representation by other unions.

p. 4
02

Whether the Appellants were entitled to the declarations and orders sought

Holding

The appeal had no merit and was dismissed with no order as to costs.

Reasoning

Since the Registrar's refusal was found lawful when Section 12 and Section 14 were considered conjunctively, the declaratory and mandatory orders sought — squashing the decision, directing issuance of the certificate, and barring the Registrar from citing the existence of the 2nd Respondent — could not issue.

p. 4

Legal principles established

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  • Sections 12, 13 and 14 of the Labour Relations Act must be read conjunctively; a party seeking to register a trade union cannot comply with either provision in isolation
  • The Registrar of Trade Unions may consider Section 14 considerations conjunctively with Section 12 when declining to issue a pre-registration certificate

Court orders

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  1. 1.The appeal is dismissed
  2. 2.There will be no order as to costs

Authorities

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Legislation

  • Labour Relations ActSections 12, 13, 14, 14(d), 23(4)
  • Industrial Court (Procedure) Rules 2010Rule 8(3) (also referred to as Rule 83), Form 1
  • Constitution of Kenya 2010Articles 2(1) and (4), 36(2), 41

Cases cited (3)

  • David Benedict Omulama and 8 Others vs Registrar Trade Unions
  • Nickson Kunyu Mbura & 6 Others vs Registrar Trade Unions and Another
    2015 eKLR
  • Court of Appeal Civil Appeal No. 19/2016 (Nairobi)
On appeal from
The Registrar of Trade Unions (administrative decision)
Jurisdiction invoked
Appeal under the Labour Relations Act, 2007 against the Registrar of Trade Unions' refusal to issue a pre-registration certificate

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, "Kenya Union of Courtier and Allied Workers represented by its Promoters & 4 others v Registrar of Trade Unions & another [2018] KEELRC 1757 (KLR)", Case Analysis (2018). Appeal No. 17 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1757/eng@2018-05-30

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