Kenya Medical Practitioners, Pharmacists and Dentists' Union (KMPDU) & 2 others v Registrar of Trade Unions & 2 others; Benjamin (Applicant); Registrar of Trade Unions & 4 others (Interested Parties) (Appeal E087 of 2022 & Petition E194 of 2022 (Consolidated)) [2023] KEELRC 424 (KLR)
The bottom line
#Kenya's Registrar of Trade Unions cannot refuse to register union officials elected in an election unless a court order stops her, the ELRC held.
What this practically means
#Executive summary
#Key legal issues
#Whether the Registrar of Trade Unions had power under section 35 of the Labour Relations Act to refuse to register officials elected in a union election
The Registrar had no such power. Section 35 deals only with notification of changes of officials mid-term, not with registration of officials elected in elections. Electoral disputes are referable to the Court under section 34(4), and the Registrar cannot reject registration of elected officials absent court orders stopping registration.
The court drew a distinction between registration of officials after elections, governed by section 34, and changes mid-term, governed by section 35. The marginal notes confirm the distinction. Section 34(4) reserves electoral disputes to the Industrial Court (ELRC). The Registrar's reliance on her own interpretation of the court ruling and her finding of insufficient notice amounted to acting without jurisdiction, since no member had invoked section 34(4) and no court order barred registration.
Whether the Registrar's letter dated June 21, 2022 declining registration was valid
The letter was in excess of the Registrar's authority and was null and void; the Respondent was directed to register the officials in Form Q submitted on June 13, 2022
Since no member had invoked section 34(4) within the prescribed regime, and the notice issue had been decided by the Eldoret court in ELRC Petition E017 of 2022, the Registrar had no legal basis to nullify the elections or refuse registration. Acting without jurisdiction, her decision was a nullity in line with Macfoy v United Africa Co.
Whether the Petitioners were entitled to the reliefs sought in the Petition
The petition was dismissed as out of time and unproven
The Trade Unions Elections (Election Petition) Rules, 2014 require an election petition to be filed within 7 days of declaration of results, and the petition must state entitlement to petition under section 34(4). The petition was filed five months after the June 11, 2022 elections, without leave for extension, and did not state entitlement under section 34(4).
Whether the trial judge should recuse herself
The recusal application was dismissed as an abuse of process
The applicant failed to prove the test of bias (real possibility of bias from the perspective of a fair-minded and informed observer). The allegations were unsubstantiated, the applicant was forum shopping, and both principal parties opposed the recusal. Citing Prayosha Ventures, Locabail and Kaplan & Stratton, the court held that judges should not yield to frivolous objections.
Whether the 3rd Interested Party's preliminary objection should succeed
The preliminary objection was dismissed
Applying Mukisa Biscuit, the issues raised (capacity of the person who instituted the appeal) were issues of fact not agreed upon, not points of law, and were raised late after several dates for highlighting submissions had been taken.
The extent to which the court can address issues raised by interested parties
Issues for determination remain those presented by the principal parties; interested parties cannot introduce new issues
Relying on the Supreme Court's decision in Methodist Church of Kenya v Fugicha quoting Muruatetu, the court held that the overriding interest is that of the principal parties and that an interested party's stake cannot take the form of a new issue before the court.
Legal principles established
#- Sections 34 and 35 of the Labour Relations Act are distinct: section 34 governs elections and vests electoral disputes in the Court under section 34(4), while section 35 governs notification of changes of officials; the Registrar has no power to refuse registration of officials elected in an election absent court orders
- An interested party may not frame its own fresh issues or introduce new issues for determination by the Court
- A preliminary objection must consist of a point of law pleaded or arising by clear implication out of the pleadings, and must be raised at the earliest opportunity
- A judge should not recuse herself on unproven allegations motivated by forum shopping
Court orders
#- 1.The application for recusal of the judge is dismissed with costs
- 2.The application dated January 6, 2023 is summarily dismissed
- 3.The Notice of Preliminary Objection by the 3rd Interested Party is dismissed
- 4.A finding that the Registrar's letter dated June 21, 2022 was in excess of her authority and is null and void
- 5.The Respondent is directed to register the Appellant's officials as set out in Form Q submitted to the office for registration on June 13, 2022
- 6.The Petition in ELRC Petition No E194 of 2022 is dismissed
- 7.There shall be orders for costs
- On appeal from
- Registrar of Trade Unions (administrative decision, not a court)
- Letter dated June 21, 2022 refusing to register officials presented in Form Q dated June 13, 2022
- Jurisdiction invoked
- Section 30 of the Labour Relations Act (appeals against decisions of the Registrar to the Industrial Court/ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Medical Practitioners, Pharmacists and Dentists' Union (KMPDU) & 2 others v Registrar of Trade Unions & 2 others; Benjamin (Applicant); Registrar of Trade Unions & 4 others (Interested Parties) (Appeal E087 of 2022 & Petition E194 of 2022 (Consolidated)) [2023] KEELRC 424 (KLR)", Case Analysis (2023). ELRC Appeal No E087 of 2022 (consolidated with Nairobi ELRC Petition No E194 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/424/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.