Republic v Registrar of Trade Unions, Ministry of Labor and Social Protection; Ex parte Kenya Union of Clinical Officers; Attorney General (Interested Party) [2021] KEELRC 1584 (KLR)

The court reviewed Article 41(4) and Section 34 of the Labour Relations Act and found the Applicant failed to show the Registrar acted outside Section 34 or how the circular, issued generally to all trade unions, violated Article 41(4). Section 34(2) requires constitutions to bar unfair discrimination between incumbents and other candidates and to provide for elections at least every five years, and Section 34(5) empowers the Registrar to issue directions to that end. The Applicant also failed to address the Respondent's averment that its constitution contravened Section 34(2).

The court examined Articles XVIII and XX of the Applicant's registered Constitution. Article XX, which converts interim officials into national office bearers for a 'first term', does not define that term or address branch officials never subjected to elections. Article XVIII establishes an Election Board but does not empower it to set a calendar of elections, a function the court held to be the Registrar's preserve under Section 34(3). Article XX must therefore be read with Section 34(3) such that the interim officials' term ends upon the next elections called by the Registrar.

Applying the Pastoli v Kabale District Local Government test (illegality, irrationality and procedural impropriety) and Section 7(2) of the Fair Administrative Actions Act, the court found the Applicant had not demonstrated that the circular was illegal, unprocedural or unfair. The Respondent's directions were rationally connected to the statutory purpose of ensuring regular, non-discriminatory union elections, and the Applicant's evidence did not discharge the burden of showing an ultra vires act.