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ELRCDismissedJudicial Review Application dated 13th May 2019 (Notice of Motion filed 24th May 2019)· [2022] KEELRC 979 (KLR)

Samuel King’ara Kabati v Registrar of Trade Unions & another [2022] KEELRC 979 (KLR)

Employment and Labour Relations Court
28 January 2022
2,335 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed the air traffic controllers' bid for a union certificate because they skipped the mandatory 30-day appeal and followed binding precedent.

What this practically means

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Executive summary

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The Applicants, qualified Air Traffic Controllers employed by the Kenya Civil Aviation Authority, sought certiorari to quash the Registrar of Trade Unions' decision of 6th February 2019 refusing them a certificate under Section 12 of the Labour Relations Act, and mandamus compelling issuance of the certificate to enable recruitment of members for a proposed Kenya Air Traffic Controllers Union. The Registrar defended her decision on the ground that the cadre was already sufficiently represented by two other aviation-sector unions, relying on Section 14 of the Act and on the Court of Appeal's decision in Charles Salano, which held that Section 12 certificates are not automatic. The Court agreed with the Applicants that the Registrar erred: Section 12 is a preparatory certification regime to be applied strictly on its own terms, and considerations of existing representative unions belong to Section 14 at the registration stage. A Section 12 certificate does not confer registration and would not cause proliferation of unions. The Court expressly disagreed with the Registrar's and the Court of Appeal's interpretation. Nonetheless, it declined the application on two grounds: it is bound by the Salano precedent despite disagreeing with it; and the Applicants bypassed the mandatory 30-day appeal under Section 30 of the Labour Relations Act, filing judicial review three months after the decision in what the Court characterised as circumvention of the statutory procedure. The application for prerogative orders was declined with no order on costs, the judgment delivered electronically at Nairobi on 28th January 2022 by James Rika J.

Key legal issues

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01

Scope of the Registrar's mandate under Section 12 of the Labour Relations Act

Holding

Section 12 governs certification strictly on its own terms; considerations of existing representative unions belong to Section 14 at the registration stage, and importing Section 14 into Section 12 was unlawful

Reasoning

The Court held the two provisions serve separate objectives. Section 12 is a preparatory certificate enabling promoters to gather and craft a constitution free from laws on illegitimate trade union activities, protecting Article 41 rights. Section 14 applies only once an application for registration with a constitution is presented. The Registrar pre-empted the registration application and curtailed the Applicants' freedom of association.

p. 3
02

Effect of a Section 12 certificate

Holding

A certificate does not confer registration or likelihood of registration; it merely permits lawful pre-registration activities

Reasoning

The Court reasoned that the certificate only allows persons to gather for pre-registration trade union activities without risking the law on illegal organisations and gatherings. Because the certificate does not confer registered status, granting it would not cause a proliferation of unions, contradicting the Registrar's and Court of Appeal's rationale.

p. 3
03

Adequacy of judicial review where a statutory appeal exists

Holding

The application fails because the Applicants bypassed the 30-day appeal under Section 30 and filed judicial review three months after the decision

Reasoning

Section 30 requires aggrieved persons to appeal within 30 days. The Applicants did not appeal and did not explain the failure. Rule 7para 2 of the E&LRC Procedure Rules and judicial review generally are not an escape route for parties who fail to follow statutory procedure; the application bore the hallmark of circumvention of Section 30.

p. 4
04

Stare decisis on the Salano decision

Holding

Although the Court disagrees with the Court of Appeal's interpretation, it is bound to apply it

Reasoning

The Court of Appeal in Charles Salano held that grant of a Section 12 certificate is not automatic and that limiting Article 26 and 41 rights was reasonable and justifiable. The Court found that interpretation erroneous on Section 12's scope but, being bound, applied it as a second ground for declining the application.

p. 4

Legal principles established

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  • Grant of a certificate under Section 12 of the Labour Relations Act is not automatic
  • A lower court must apply binding precedent of a superior court even where it disagrees with it
  • Judicial review cannot be used as an escape route from a statutory appeal procedure

Court orders

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  1. 1.The Application for prerogative orders of certiorari and mandamus, filed by the Applicants herein, is declined.
  2. 2.No order on the costs.

Authorities

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Legislation

  • Labour Relations ActSection 12
  • Labour Relations ActSection 14
  • Labour Relations ActSection 30
  • Constitution of Kenya, 2010Articles 26 and 41
  • E&LRC [Procedure] Rules, 2016Rule 7[2]

Cases cited (2)

  • Charles Salano & 9 Others [Promoters of Kenya Supermarkets Workers Union] v. The Registrar of Trade Unions & Another
    Civil Appeal No. 19 of 2016
  • Paul Mungai Muiruri & 5 Others v. The Registrar of Trade Unions
    [2018] e-KLR
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court under Rule 7[2] of the E&LRC [Procedure] Rules, 2016; dispute governed by the 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, "Samuel King’ara Kabati v Registrar of Trade Unions & another [2022] KEELRC 979 (KLR)", Case Analysis (2022). Judicial Review Application dated 13th May 2019 (Notice of Motion filed 24th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/979/eng@2022-01-28

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