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ELRCDismissedNot stated in judgment (appeal against refusal of trade union registration)· [2022] KEELRC 1513 (KLR)

Promoters, Kenya Salt Workers Union (Lawrence K Majali, Folleni Chea Boshei, Moses H Kellah, Safari Kazungu Nyanje, Kazungu Kondoduka And Dethitarss Mako Kofa) v Registrar of Trade Unions; Kenya Chemical Workers Union (Interested Party) (Employment and Labour Relations Appeal 1 of 2019) [2022] KEELRC 1513 (KLR)

Employment and Labour Relations Court
14 June 2022
BMB. O. M. Manani
1,879 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed the Registrar of Trade Unions can refuse to register a new union when an existing one already serves the sector, even without an objection.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court against the Registrar of Trade Unions' decision of May 20, 2019 declining to register the Kenya Salt Workers Union. The Registrar had relied on section 14(1)(d) of the Labour Relations Act, taking the view that the salt sector was already served by an existing trade union, which was joined as an Interested Party. The appeal was argued on written submissions and the court distilled three issues: the legality of the refusal, the alleged infringement of constitutional rights of association, and whether refusal was permissible absent an objection from the existing union. The court held that while the Registrar must notify an existing union and invite objections, an objection merely fortifies the Registrar's decision; failure by the existing union to object did not oblige registration, particularly where the Registrar had evidence - including the Interested Party's constitution filed with him - that the sector was already covered. On the constitutional question, the court held that articles 36 and 41 rights are not absolute and that the statutory limitation preventing proliferation of weak unions in the same sector is reasonable and justifiable in an open and democratic society under article 24, consistent with Tera Aduda. The appeal was dismissed with costs to the Respondent and the Interested Party. Judgment was delivered online under Covid-19 directions with the parties' consent.

Key legal issues

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01

Whether refusal of registration under section 14(1)(d) was lawful despite no objection from the existing union

Holding

The refusal was lawful; the Registrar was not bound to register merely because the existing union did not object

Reasoning

The proviso to section 14(1) obliges the Registrar to notify an existing union and invite objections, but an objection merely fortifies the Registrar's decision. The Registrar retained the statutory power to reject an application where evidence showed an existing union served the sector, information available from the Interested Party's Constitution filed with the Registrar.

p. 3
02

Whether the refusal infringed the constitutional rights of association (articles 36 and 41)

Holding

No infringement; the statutory limitation is reasonable and justifiable under article 24

Reasoning

Articles 36 and 41 rights are not absolute and may be limited under article 24 by law where reasonable and justifiable in an open and democratic society. The limitation preventing proliferation of unions in the same sector serves the objective of strong unions serving workers' interests, following Tera Aduda.

p. 4

Legal principles established

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  • The Registrar of Trade Unions may decline registration of a proposed union on the ground that an existing union sufficiently represents the sector, even where the existing union lodged no objection.
  • Statutory limitations on the right to form or join a trade union aimed at preventing proliferation of weak unions are reasonable and justifiable under article 24 of the Constitution.

Court orders

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  1. 1.Appeal dismissed in its entirety.
  2. 2.Costs of the Appeal granted to the Respondent and the Interested Party.
  3. 3.Judgment delivered online pursuant to Covid-19 directions, parties having waived compliance with Rule 28(3) of the ELRC Procedure Rules.

Authorities

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Legislation

  • Labour Relations Actsection 14(1)(d)
  • Labour Relations Actproviso to section 14(1)
  • Labour Relations Actsection 14 (guidelines)
  • Constitution of Kenya, 2010article 36
  • Constitution of Kenya, 2010article 41
  • Constitution of Kenya, 2010article 24
  • Constitution of Kenya, 2010article 25
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (1)

  • Tera Aduda & 6 Others v Registrar of Trade Unions
    [1978] eKLR
On appeal from
Registrar of Trade Unions (administrative decision)
Application for registration of Kenya Salt Workers Union; refusal letter dated May 20, 2019
Jurisdiction invoked
Appeal to the Employment and Labour Relations Court against the Registrar of Trade Unions' refusal under the Labour Relations Act, section 14(1)(d)

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, "Promoters, Kenya Salt Workers Union (Lawrence K Majali, Folleni Chea Boshei, Moses H Kellah, Safari Kazungu Nyanje, Kazungu Kondoduka And Dethitarss Mako Kofa) v Registrar of Trade Unions; Kenya Chemical Workers Union (Interested Party) (Employment and Labour Relations Appeal 1 of 2019) [2022] KEELRC 1513 (KLR)", Case Analysis (2022). Not stated in judgment (appeal against refusal of trade union registration). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1513/eng@2022-06-14

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