Hesbon Lumumba M’Mbolo & 5 others v Registrar of Trade Unions; Kenya National Private Security Workers Union & another (Interested Parties) [2021] KEELRC 2187 (KLR)
The bottom line
#Kenya's Employment Court paused a trade union registration appeal because the outcome depends on a pending Court of Appeal case about the recruitment certificate.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Appeal is res judicata given the prior judgment in Appeal No. 9 of 2018 and pending Civil Appeal No. 154 of 2019
- 2.Whether the Appeal is sub judice given the pending Court of Appeal challenge to the judgment on the certificate of recruitment
- 3.Whether the Appeal ought to be stayed pending the outcome of Civil Appeal No. 154 of 2019
Key legal issues
#Res judicata
Res judicata does not apply because the prior judgment concerned refusal of a certificate of recruitment under section 12 of the Labour Relations Act, whereas the instant Appeal challenges refusal of registration under section 20
The earlier judgment in Appeal No. 9 of 2018 addressed the Registrar's refusal to issue an interim certificate of recruitment under section 12 of the Labour Relations Act. The present Appeal challenges a distinct decision - refusal to register the proposed Union under section 20. Although closely interwoven, the issues are distinct, so the doctrine of res judicata is not attracted.
Sub judice / stay pending appeal
The Appeal should be stayed pending the outcome of Civil Appeal No. 154 of 2019 because the outcome of that appeal is legally interwoven with the instant Appeal
The certificate of recruitment under section 12 is a statutory precondition to registration. If the Court of Appeal upholds the 1st Interested Party's appeal against the judgment ordering issuance of that certificate, the foundation of the registration application would dissipate and any judgment here would be academic. Determining the Appeal before the Court of Appeal decides would serve no purpose.
Legal principles established
#- A certificate of recruitment issued under section 12 of the Labour Relations Act is a statutory precondition to the registration of a trade union
- A court should take judicial notice of pending proceedings whose determination may bind it or affect the dispute before it where there are related issues
Court orders
#- 1.THAT this Appeal and the proceedings hitherto be stayed pending the outcome of Civil Appeal No. 154 of 2019, Kenya National Private Security Workers v Hesbon Lumumba & Ors.
- 2.Costs in the cause.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over the Registrar of Trade Unions' decision under the Labour Relations Act, 2007 (appeal against refusal to register under section 20)
Relief refused
#Determination of the Appeal on the merits
The Court found the Appeal legally interwoven with the pending Court of Appeal matter and stayed it instead of determining it
Costs
Costs in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Issues are therefore distinct though closely interwoven. In the circumstances, the Court finds that res judicata does not apply.
it is not in dispute that a certificate of recruitment issued pursuant to section 12 of the Labour Relations Act is a statutory sine qua non for the registration of a trade union.
THAT this Appeal and the proceedings hitherto be stayed pending the outcome of Civil Appeal No. 154 of 2019, Kenya National Private Security Workers v Hesbon Lumumba & Ors.
Issues in the judgment
#The judgment caption/case number of the instant Appeal is not stated in the extract; only the antecedent Appeal No. 9 of 2018 and Civil Appeal No. 154 of 2019 are identified
The name of the 1st Interested Party appears inconsistently in the judgment (Kenya National Private Workers Union vs Kenya National Private Security Workers Union)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hesbon Lumumba M’Mbolo & 5 others v Registrar of Trade Unions; Kenya National Private Security Workers Union & another (Interested Parties) [2021] KEELRC 2187 (KLR)", Case Analysis (2021). Appeal (Nairobi) – instituted 25 March 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2187/eng@2021-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.