Nicky Njuguna & 3 others v Registrar of Trade Unions; Central Organization of Trade Unions (Kenya) (Interested Party) eKLR [2019] KEELRC 2034 (KLR)

The court held the appeal was governed by repealed legislation since no amendment or fresh application was made under the new laws, which have no retrospective effect. Under the law then applicable, section 80(2) of the repealed Constitution expressly allowed restrictions on members of a disciplined force, section 40 of the Police Act prohibited police officers from union membership on pain of dismissal, and section 3 of the Trade Disputes Act excluded police from the machinery a union needs to operate, collect dues and negotiate collective agreements. The Registrar's decision was therefore consistent with the law as it then was.

The court agreed with the petitioners that section 16(1)(d)(i) (existence of another sufficiently representative union) was inconsistent with the grounds in the Notification of Refusal and not a valid basis. However, the applicants described themselves as businessmen, managers or ex-policemen, none actually employed in the police force, so under section 29 of the Trade Unions Act they lacked capacity to apply for registration and could not qualify as officers of the union.

The court noted the appellants sought declarations of unconstitutionality of new legislation, but these were not prayers in the memorandum of appeal filed in 2007 and could not be pursued through an appeal. The Court of Appeal in Civil Appeal No. 251 of 2014 had already held that such substantive constitutional claims must be commenced by constitutional petition with all affected parties, including the Attorney General, joined.