Samuel King’ara Kabati v Registrar of Trade Unions & another [2022] KEELRC 979 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Scope of the Registrar's mandate under Section 12 of the Labour Relations Act
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
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.
Effect of a Section 12 certificate
A certificate does not confer registration or likelihood of registration; it merely permits lawful pre-registration activities
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.
Adequacy of judicial review where a statutory appeal exists
The application fails because the Applicants bypassed the 30-day appeal under Section 30 and filed judicial review three months after the decision
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.
Stare decisis on the Salano decision
Although the Court disagrees with the Court of Appeal's interpretation, it is bound to apply it
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.
Legal principles established
#- 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
#- 1.The Application for prerogative orders of certiorari and mandamus, filed by the Applicants herein, is declined.
- 2.No order on the costs.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.