Mugambi & 4 others (Suing as promoters, interim officials and applicants for registration of Kenya National Union of Public Prosecutors (KNUPP)) v Registrar of Trade Unions (Appeal E145 of 2021) [2022] KEELRC 4151 (KLR)
The bottom line
#Kenya's Employment Court ordered the Registrar of Trade Unions to immediately register a union for public prosecutors, ruling professionals without management powers have a right to unionise.
What this practically means
#Executive summary
#Key legal issues
#Whether Public Prosecutors are managers ineligible for unionisation
The appellants are Employees, not Managers; they exercise no decisional control under the ODPP Act and cannot be denied registration on that basis.
The ODPP Act establishes management structures - the Director, Deputy Directors and the Advisory Board - which exercise decisional control over recruitment, promotion and discipline. The appellants hold none of these prerogatives. The Industrial Relations Charter, as explained in Halima Adan Ahmed, prohibits unionisation only of employees with authority to hire, transfer, appraise, suspend, promote, discipline or handle grievances. The appellants fall outside those prohibited categories.
Whether the Registrar lawfully delegated the decision to the National Labour Board
The Registrar owns the decision to register or refuse; the National Labour Board's advice, tainted by COTU(K)'s presence as sole objector, could not ground a lawful refusal.
Relying on the Kenya Concrete Union case, the court held that although section 19 of the Labour Relations Act and section 31(3) of the Labour Institutions Act require the Registrar to act on the Board's advice, section 31(1) makes the Registrar responsible for registration. The Board harbours vested interests against new unions. Here COTU(K), the sole objector, sat on the Board, rendering its advice valueless; the refusal was therefore unfair and unlawful.
Whether KNUPP is a splinter union that would weaken existing unions
No evidence showed KNUPP broke away from any existing union or that any other union represents Public Prosecutors; the splinter-union objection was imprecise.
Splinter unions in Kenya are offshoots formed by disagreeing officials of existing unions. COTU(K) did not specify any parent union, and no registered union claimed representation of Public Prosecutors when objections were invited. The multiplicity objection failed because no community of interests with existing public service unions was demonstrated.
Whether the refusal violated the appellants' constitutional rights
The refusal infringed articles 36, 41 and 47 of the Constitution and section 4 of the Labour Relations Act.
The reasons advanced by the Registrar, as advised by the National Labour Board and argued by COTU(K), merely highlighted limitations on rights rather than advancing the constitutional purpose of protecting employees' freedom of association, consistent with Patrick Olenda. Professionals with an identifiable community of interests cannot be denied the right to associate.
Legal principles established
#- The role of registration and regulation of Trade Unions vests in the Registrar, who must exercise her own discretion and not rubber-stamp the advice of the National Labour Board.
- Employees such as Public Prosecutors who lack decisional control or management prerogatives are unionisable notwithstanding their professional status.
- A Trade Union constitution need not demarcate management from unionisable staff where the employer's constitutive legislation and the Industrial Relations Charter supply that line.
Court orders
#- 1.The decision by the Registrar of Trade Unions, communicated to the appellants through Form D, dated October 25, 2021 is hereby quashed.
- 2.The Registrar of Trade Unions shall immediately and unconditionally, register the appellant's Trade Union, Kenya National Union of Public Prosecutors KNUPP, issue the Certificate of Registration, and enter its name in the Register of Registered Trade Unions.
- 3.No order on the costs.
- On appeal from
- Registrar of Trade Unions (administrative decision)
- Form D Notification of Refusal of Registration dated October 25, 2021
- Jurisdiction invoked
- Appeal against refusal of registration of a Trade Union under the Labour Relations Act, 2007; rights under articles 36, 41 and 47 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugambi & 4 others (Suing as promoters, interim officials and applicants for registration of Kenya National Union of Public Prosecutors (KNUPP)) v Registrar of Trade Unions (Appeal E145 of 2021) [2022] KEELRC 4151 (KLR)", Case Analysis (2022). Industrial Court Appeal ( Memorandum of Appeal dated November 19, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4151/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.