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ELRCAllowedJudicial Review Application (Amended Notice of Motion dated 27th April 2021)· [2021] KEELRC 1391 (KLR)

Republic v Registrar of Trade Union Ex parte Universities Academic Staff Union Egerton University Chapter; Joseph Juma Mafura & 6 others (Interested Parties) [2021] KEELRC 1391 (KLR)

Employment and Labour Relations Court
22 June 2021
3,738 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a registered union branch can sue, and only a committee itself may co-opt its officials.

What this practically means

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Executive summary

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The Ex-parte Applicant, the Egerton University Chapter of the Universities Academic Staff Union, moved the Court by Amended Notice of Motion dated 27th April 2021 seeking certiorari to quash the Registrar of Trade Unions' decision registering Samuel Muga K'Olale, Reannah R. Nyakoah and Fredrick M. Mwangangi (the 5th to 7th Interested Parties) as co-opted officials of the Chapter, and mandamus compelling the Registrar to register instead Dr. Joseph Juma Mafura, Mr. Eliud Okumu Ongowo and Mr. Johanna Oyugi Nyanjong (the 1st to 3rd Interested Parties), whom the Chapter's executive committee had co-opted by resolution of 26th March 2021. The 4th to 7th Interested Parties opposed, arguing the Chapter lacked locus standi and that the 5th to 7th Interested Parties were elected/co-opted at the general meeting of 24th March 2021. The court framed three issues: locus, propriety of co-option, and remedies. On locus, it held registration of the branch confers capacity and that the Constitution's enlarged locus standi guarantees access to justice. On co-option, it found Article 19(g) of the Union constitution covers only elected officials, the exit report of the 24th March 2021 election contains no record of co-option, and co-option is properly the function of the committee itself. The court allowed the application, granting certiorari and mandamus as prayed, with costs of the application and the leave application borne by the Respondent. Judgment was delivered virtually on 22nd June 2021 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Locus standi of a union branch/chapter to sue

Holding

The registered chapter has locus to sue; the Act is silent on branch capacity but registration under section 25 confers capacity, and the enlarged constitutional scope of locus standi supports access to justice.

Reasoning

Section 21 of the LRA makes a registered trade union a body corporate; the Act is silent on branch capacity. Section 25(5) provides no person shall act as an official of an unregistered branch, so registration is the operative factor conferring capacity. Relying on LSK Nairobi Branch v Malindi LSK and Mumo Matemu, the court held that denying the chapter standing would hinder access to justice contrary to Article 50(1) of the Constitution.

p. 6
02

Whether the 5th to 7th Interested parties were properly co-opted

Holding

They were not properly co-opted; Article 19(g) of the Union constitution covers only elected officials, the exit report of the 24th March 2021 election does not record any co-option, and co-option is a function of the committee itself.

Reasoning

Article 19(g) of the union constitution provides for election of chapter officials every five years but does not cover co-opted members or how they are co-opted. The exit report signed by the UASU Electoral Committee detailed the 24th March 2021 elections and showed only who was elected, with no indication of co-option. The claim that co-option occurred that day was unsupported by evidence, whereas the 26th March 2021 executive committee resolution validly co-opted the 1st to 3rd interested parties.

p. 6
03

Judicial review remedies for the Registrar's registration decision

Holding

The Registrar's decision to register the 5th to 7th interested parties was unlawful and was quashed by certiorari, with mandamus compelling registration of the 1st to 3rd interested parties.

Reasoning

Having found the co-option of the 5th to 7th interested parties unsupported by evidence and the chapter's own co-option of the 1st to 3rd interested parties lawful, the court found the applicant's case had merit. The court granted the prayers sought: certiorari to quash the unlawful registration and mandamus compelling the Respondent to register the duly co-opted members, with costs to the applicant.

p. 6

Legal principles established

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  • Registration of a branch under section 25 of the Labour Relations Act gives the branch capacity and locus to perform its functions.
  • Co-option of members to a committee can only be done by the committee itself, not by any other group.
  • The 2010 Constitution enlarged the scope of locus standi in Kenya under Articles 22 and 258.

Court orders

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  1. 1.Pending hearing and determination of the matter, leave granted to file the substantive motion does operate as a stay of the Respondent's decision registering Samuel Muga K'Olale, Reannah R. Nyakoah and Fredrick M. Mwangangi as officials of UASU Egerton University Chapter.
  2. 2.Certiorari quashing the Respondent's decision to register Samuel Muga K'Olale, Reannah R. Nyakoah and Fredrick M. Mwangangi as co-opted officials of UASU Egerton University Chapter.
  3. 3.Mandamus compelling the Respondent to register Dr. Joseph Juma Mafura, Mr. Eliud Okumu Ongowo and Mr. Johanna Oyugi Nyanjong as co-opted officials of UASU Egerton University Chapter.
  4. 4.Costs of the application and of the chamber summons dated 14th April 2021 to be borne by the Respondent.

Authorities

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Legislation

  • Labour Relations ActNo. 14 of 2007
  • Labour Relations ActSection 25
  • Labour Relations ActSection 25(5)
  • Labour Relations ActSection 21
  • Labour Relations ActSection 35(5) and (6)
  • Labour Relations ActSection 25
  • Law Society of Kenya ActSections 3, 4, 15 and 24
  • Constitution of Kenya, 2010Articles 22, 41(2), 50(1) and 258
  • UASU ConstitutionArticle 19, including 19(f) and 19(g)

Cases cited (8)

  • Pastolic –v- Kabale District Local Government Council & another
    [2008] EA 300
  • Universities Academic Staff Union (UASU) -v- Jomo Kenyatta University of Agriculture and Technology (JKUAT)
    [2006] eKLR
  • Law Society of Kenya, Nairobi Branch -v- Malindi Society & others
    [2017] eKLR
  • Mumo Matemu –v- Trusted Society of Human Rights Alliance & 5 others
    [2014] eKLR
  • John Wekesa Khaoya v. Attorney General
    Petition No. 60 of 2012; [2013] eKLR
  • Republic –v- National Land Commission and another Ex-parte Farmers' Choice Limited
    [2020] eKLR
  • Nairobi ELRC No. 773 of 2017 (UASU sued its National Union)
  • Mombasa Petition Number 6 of 2019 (UASU Mombasa Chapter sued Mombasa Technical University)
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court; Labour Relations Act No. 14 of 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, "Republic v Registrar of Trade Union Ex parte Universities Academic Staff Union Egerton University Chapter; Joseph Juma Mafura & 6 others (Interested Parties) [2021] KEELRC 1391 (KLR)", Case Analysis (2021). Judicial Review Application (Amended Notice of Motion dated 27th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1391/eng@2021-06-22

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