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ELRCPartially AllowedJudicial Review Miscellaneous Application (not specified in judgment)· [2019] KEELRC 1112 (KLR)

Republic v Cabinet Secretary, Ministry of Labour & Social Protection & another; Ex Parte Kenya Union of Secondary Schools Non-Teaching Staff [2019] KEELRC 1112 (KLR)

Employment and Labour Relations Court
19 July 2019
925 words in judgment
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The bottom line

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A Kenyan court ordered the Labour Ministry to gazette a union's dues-deduction order, but only after the union files a proper application with the right documents.

What this practically means

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Executive summary

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The ex-parte applicant, a registered trade union representing non-teaching staff in secondary schools, moved the court by notice of motion dated 05.09.2018 under section 8 of the Law Reform Act and Order 53 rule 1 of the Civil Procedure Rules seeking an order of mandamus compelling the 1st respondent to gazette the applicant's bank account forthwith in compliance with section 48 of the Labour Relations Act, 2007, together with costs. The applicant's financial base is union dues, which can only be deducted and remitted once the 1st respondent issues a ministerial order directing employers to deduct dues from members' wages. The 1st respondent opposed the application through the replying affidavit of Isaiah B. Kirigua, Ag. Labour Commissioner, contending that the application was premature because the applicant had requested gazettement of a bank account rather than gazettement of a ministerial order by legal notice for deduction of dues, as required by section 48(2). The applicant had been advised of the correct procedure by letter dated 23.04.2018. The court framed two issues: whether the applicant had complied with section 48(2), and whether the 1st respondent had thereafter failed to issue the prescribed order. The court found the Act prescribes no particular form for the application and, noting the respondent was waiting for a proper application, directed the applicant to apply within 7 days with full supporting documents, and the 1st respondent to issue and gazette the order by 01.09.2019. Each party was ordered to bear its own costs.

Key legal issues

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01

Compliance with section 48(2) of the Labour Relations Act, 2007

Holding

The applicant had not strictly complied because its request was to gazette a bank account rather than an order by way of legal notice for deduction of union dues; the Act does not prescribe a particular form, so the applicant was given 7 days to make a proper application

Reasoning

The court examined section 48(2) which allows a trade union to request the minister to order employers of more than five employees belonging to the union to deduct dues and pay them into a specified account. The 1st respondent confirmed the union was properly mandated under its constitution but found the request defective in form. The court held the Act prescribes no particular form and, to amicably resolve the dispute, directed the applicant to make a proper application, with the respondent then obliged to gazette the order by a fixed date.

p. 2
02

Whether the 1st respondent failed to issue the prescribed order on deduction of union dues

Holding

The 1st respondent's delay was attributable in part to the defective application; once a proper application is made, the respondent is directed to issue and publish the order by 01.09.2019

Reasoning

The court accepted that the 1st respondent had advised the applicant, by letter dated 23.04.2018, of the necessary steps and procedures under section 48. The respondent stated it was waiting for a proper application. The court therefore did not find the respondent solely at fault, but instead sequenced compliance: proper application within 7 days, followed by gazettement by 01.09.2019.

p. 2

Legal principles established

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  • A trade union seeking a ministerial order under section 48(2) of the Labour Relations Act, 2007 must apply in the prescribed form, providing details of its bank account and attaching its certificate of registration, union constitution and evidence of recruited members

Court orders

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  1. 1.The applicant to apply within 7 days to the 1st respondent for issuance of a gazette notice in its favour as per section 48(2) of the Labour Relations Act, 2007, providing details of the bank account and attaching the certificate of registration, union constitution, and evidence of the recruited members
  2. 2.The 1st respondent to issue the relevant order and publish it in the gazette notice by 01.09.2019
  3. 3.Each party to bear own costs of the application

Authorities

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Legislation

  • Law Reform ActSection 8(2)(3)(4)
  • Civil Procedure Rules, 2010Order 53 rule 1
  • Judicature ActCap. 8
  • High Court (Practice and Procedure Rules)Part 1 rule 3
  • Labour Relations ActSection 48 (including 48(2))
  • Labour Relations ActSection 19
Jurisdiction invoked
Section 8(2)(3)(4) Law Reform Act and Order 53 rule 1 of the Civil Procedure Rules, 2010 (judicial review for an order of mandamus)

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, "Republic v Cabinet Secretary, Ministry of Labour & Social Protection & another; Ex Parte Kenya Union of Secondary Schools Non-Teaching Staff [2019] KEELRC 1112 (KLR)", Case Analysis (2019). Judicial Review Miscellaneous Application (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1112/eng@2019-07-19

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