Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedAppeal (Employment and Labour Relations Court, Bungoma) - Memorandum of Appeal from the Registrar of Trade Unions· [2019] KEELRC 1557 (KLR)

National Union of Domestic Workers (Represented by officials and promoters of the union Namely:- Paul khamasi, Musa Kabaya, Moses Mwangi, Alex Shishanya, Sylvia Iminza, Michael Anyula, Samwel Mwangi, Christine Nesabo, Lyndah Andeso, Rose Naliaka, Francis Furee, Edith Vhenda, Charles Salano & Hellen Inyangala v Registrar of Trade Unions; Kenya Union of Domestic Workders Educational Instituions and Allied Workders (Kudheiha) (Interested Party) (Appeal 1 of 2018) [2019] KEELRC 1557 (KLR)

Employment and Labour Relations Court of Kenya
30 May 2019
MNM. N. Nduma
1,729 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment and Labour Relations Court ruled the Registrar cannot refuse to register a trade union just because another union already covers the same sector.

What this practically means

#

Executive summary

#
The appellants, promoters of the proposed Kenya National Union of Domestic Workers, applied on 26th March 2016 under Section 12(1) of the Labour Relations Act for registration of the union. On 9th April 2018 the Registrar of Trade Unions, E. N. Gicheha, refused registration on the ground that the intended sector was already represented by existing unions - KUDHEIHA, KNUSE and KCFAW - relying on Section 14(1)(d)(i) of the Labour Relations Act. The appellants appealed, contending that the refusal violated their rights under Section 5 of the LRA and Articles 36, 41 and 47 of the Constitution, that they were denied a hearing, and that ratified ILO Conventions Nos. 87 and 98 apply under Article 2(6). The respondent argued the rights are not absolute and are limitable under Article 24, relying on the Charles Lalano case; the interested party, KUDHEIHA, claimed long-standing coverage of the domestic sector and alleged the promoters were disgruntled former employees. The court framed two issues: whether the Registrar was justified in refusing registration, and whether the appellants were entitled to the reliefs sought. Adopting the reasoning of Justice Nzioki Wa Makau in Appeal No. 9 of 2011, the court held that the mere existence of other unions is not a cogent ground for refusal and that the respondent failed to prove reasonable justification. However, the court restricted the proposed union's representation to domestic workers in private households to avoid conflict with existing unions, ordered the Registrar's decision quashed, required review of the union's constitution before registration, and directed the respondent and interested party to jointly and severally bear the costs of the appeal.

Key legal issues

#
01

Whether the Registrar was justified in refusing registration under Section 14(1)(d)(i) of the Labour Relations Act

Holding

The refusal was unjustified; the existence of other unions covering the sector does not bar registration, subject to the court-imposed restriction to private household domestic workers

Reasoning

The court agreed with Justice Nzioki Wa Makau's reasoning in Appeal No. 9 of 2011 that competition is permitted in the trade union movement and mere existence of a rival union is not a cogent ground. Recognising the sector-specific plight of domestic workers in private households, the court held the proposed union's idea had come of age, subject to its constitution being limited to private household domestic workers to avoid conflict with existing unions.

p. 4
02

Whether the refusal violated the appellants' constitutional rights under Articles 36 and 41 and the right to fair administrative action under Article 47

Holding

The court relied on Articles 36 and 41 on freedom of association and labour relations, and Article 2(6) on ratified ILO conventions, in allowing the appeal

Reasoning

The court aligned with prior authority holding that Articles 36 and 41 protections, together with Article 2(6) domestication of ratified ILO conventions, weigh against a refusal grounded only on overlap with existing unions. No separate finding on the Article 47 hearing claim is recorded, the refusal being quashed on the primary ground.

p. 3

Legal principles established

#
  • Mere existence of another union in a sector is not a cogent justification for refusing registration of a proposed trade union, given freedom of association and competition within the trade union movement
  • The Registrar must prove reasonable justification for refusing registration of a proposed trade union

Court orders

#
  1. 1.The decision by the Registrar of Trade Unions not to register National Union of Domestic Workers is quashed
  2. 2.The National Union of Domestic Workers is to restrict its representation to domestic workers employed in private family houses and not in any commercial and/or public establishments whether designated as homes or otherwise; the constitution of the Appellant is to be reviewed before registration to ensure this restriction is adhered to
  3. 3.The respondent and interested party to jointly and severally bear the costs of the Appeal

Authorities

#

Legislation

  • Labour Relations ActSection 12(1)
  • Labour Relations ActSection 5
  • Labour Relations ActSection 14(1)(d)(i)
  • Constitution of Kenya 2010Article 36
  • Constitution of Kenya 2010Article 41
  • Constitution of Kenya 2010Article 47
  • Constitution of Kenya 2010Article 2(6)
  • Constitution of Kenya 2010Article 24(1)(d)
  • Constitution of Kenya 2010Article 25

Cases cited (4)

  • Charles Lalano & 9 Others (Proposers & Promoters of Kenya Supermarkets Workers Union (KESMWU) v Registrar of Trade Unions & Another
    (2016) eKLR
  • Peter Mwangi and 7 others v The Registrar of Trade Unions & Another (Appeal No. 9 of 2011)
    null
  • Rift Valley Workers Union (K) v Registrar of Trade Unions (Appeal No. 9 of 2011)
    null
  • Kenya Concrete Ceramic Tiles Interior Design Workers Union v Registrar of Trade Unions & the Kenya Building Construction Timber and Allied Workers Union & others (Appeal No. 10 of 2011)
    null
On appeal from
Registrar of Trade Unions (decision of E. N. Gicheha, Registrar of Trade Unions)
Application under Section 12(1) of the Labour Relations Act dated 26th March 2016
Jurisdiction invoked
Appeal under the Labour Relations Act from the decision of the Registrar of Trade Unions refusing registration of a proposed trade union (Section 14(1)(d)(i), Labour Relations Act); constitutional provisions Articles 36, 41, 47 and 2(6) invoked

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "National Union of Domestic Workers (Represented by officials and promoters of the union Namely:- Paul khamasi, Musa Kabaya, Moses Mwangi, Alex Shishanya, Sylvia Iminza, Michael Anyula, Samwel Mwangi, Christine Nesabo, Lyndah Andeso, Rose Naliaka, Francis Furee, Edith Vhenda, Charles Salano & Hellen Inyangala v Registrar of Trade Unions; Kenya Union of Domestic Workders Educational Instituions and Allied Workders (Kudheiha) (Interested Party) (Appeal 1 of 2018) [2019] KEELRC 1557 (KLR)", Case Analysis (2019). Appeal (Employment and Labour Relations Court, Bungoma) - Memorandum of Appeal from the Registrar of Trade Unions. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1557/eng@2019-05-30

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