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ELRCDismissedAppeal No. E01 of 2021· [2021] KEELRC 911 (KLR)

Kenya National Union of Private Schools Teachers v Registrar of Trade Unions [2021] KEELRC 911 (KLR)

Employment and Labour Relations Court
23 September 2021
HWHellen Wasilwa
3,406 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed the Registrar of Trade Unions can refuse a union name or scope change if existing unions already adequately represent the teachers involved.

What this practically means

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Executive summary

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The appellant union, registered in 2002/2008 and with fewer than 50 members, resolved on 16th September 2019 to change its name to Kenya Union of Private and Public Primary School Teachers and amend its constitution to cover public primary school teachers. It applied under section 27 of the Labour Relations Act; the application was gazetted on 27th September 2019 (Gazette Notice No. 9130) inviting objections. KNUT objected, asserting public primary school teachers were already sufficiently represented. After seeking advice from the Solicitor General and the Attorney General, the Registrar rejected the application on 13th July 2020, and a review application was also declined. The appellant appealed, contending the refusal violated Articles 36, 41 and 47 of the Constitution, that objections were considered out of time under section 27(4), and that the Registrar improperly depended on the Attorney General's advice. The Respondent maintained the change would cause confusion in the sector, would amount to registering a union 'through the back door', and that section 14(1)(d) precludes registration where sufficient representation exists. The court, per Wasilwa J, held that section 27(5) requires the applicable registration requirements under section 14(1) to be met; section 14(1)(d) precluded approval since KNUT sufficiently represents public primary school teachers, and similarity is assessed on scope of operations as well as name, per Charles Ogutu. Article 41 rights are limitable under Article 24. The appeal was dismissed with no order of costs.

Key legal issues

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01

Whether the Registrar was justified in rejecting the change of name and constitution

Holding

Yes - section 14(1)(d) precludes registration where another union is sufficiently representative; public primary school teachers are represented by KNUT, and the proposed scope would cause confusion

Reasoning

The court held that the applicable requirements for registration under section 14(1) must be met before the Registrar approves a change under section 27(5). Section 14(1)(d) precludes registration where an existing union sufficiently represents the interests sought. The appellant had fewer than 50 members despite years of existence, had not exhausted private school membership, and KNUT already represented public primary school teachers. Following Charles Ogutu, similarity extends to scope of operations. The Registrar's decision was therefore lawful.

p. 5
02

Whether the Registrar improperly relied on the Attorney General's advice and delayed the decision

Holding

The Registrar was entitled to seek legal advice from the Solicitor General and the delay was not inordinate given the investigations

Reasoning

The court found the Registrar carried out investigations into KNUT's objection and sought an opinion from the Solicitor General, received on 11/3/2020, before communicating her decision. The court did not treat reliance on that advice as an abdication of independence and did not find the delay of about a year to be inordinate so as to vitiate the decision.

p. 4

Legal principles established

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  • The Registrar may refuse a change of name or constitution where an existing trade union is sufficiently representative of the interests the applicants seek to cover
  • Similarity under the Labour Relations Act is assessed not only on the name but also on the intended scope of operations
  • The right to participate in trade union activities under Article 41 is subject to limitation under Article 24 of the Constitution

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order of costs

Authorities

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Legislation

  • Labour Relations Actsection 27
  • Labour Relations Actsection 27(2), (3), (4), (5), (6), (7)
  • Labour Relations Actsection 14(1), including section 14(1)(d)
  • Labour Relations Actsection 12
  • Labour Relations Actsection 18(4)
  • Basic Education Actsection 14(1)(d)
  • Attorney General Actsection 5(1)
  • Constitution of KenyaArticle 36(1), (3)
  • Constitution of KenyaArticle 41(2)(c), Article 41
  • Constitution of KenyaArticle 47(1)
  • Constitution of KenyaArticle 24

Cases cited (3)

  • Kenya Concrete, Structural Ceramics, Tiles Wood Plys and Interior Designs Workers Union v Registrar of Trade Unions and another
    [2013] eKLR
  • Kenya Union of Printing, Paper Manufacturers and Allied Workers v Packaging Industries Limited and another
    [2014] eKLR
  • Charles Ogutu & 2 others v The Registrar of Trade Unions
    [2016] eKLR (also cited as (2018) eKLR)
On appeal from
Registrar of Trade Unions
Jurisdiction invoked
Appeal against the Registrar of Trade Unions' decision of 13th July 2020 refusing to register a change of name and amended constitution, 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, "Kenya National Union of Private Schools Teachers v Registrar of Trade Unions [2021] KEELRC 911 (KLR)", Case Analysis (2021). Appeal No. E01 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/911/eng@2021-09-23

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