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ELRCPartially AllowedELRC Appeal No E087 of 2022 (consolidated with Nairobi ELRC Petition No E194 of 2022)· [2023] KEELRC 424 (KLR)

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)

Employment and Labour Relations Court
10 February 2023
12,743 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~51 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nairobi (Onyango J, February 10, 2023) disposed of a consolidated appeal and petition arising from the Kenya Medical Practitioners, Pharmacists and Dentists Union's repeat elections held on June 11, 2022, conducted by the Commissioner of Labour pursuant to orders of Nzioki wa Makau J in ELRC Petition No E080 of 2021. The Registrar of Trade Unions, by letter dated June 21, 2022, declined to register the officials elected at the repeat elections, citing insufficient notice and non-conformity with the earlier ruling. The Union appealed under section 30 of the Labour Relations Act, while two members filed a petition seeking nullification of the June 11, 2022 elections. The court first dismissed an application for its recusal, finding it a calculated scheme of forum shopping without proof of bias, and also dismissed a production application and a preliminary objection. On the merits, the court held that sections 34 and 35 of the Labour Relations Act are distinct: section 34 governs elections, with electoral disputes reserved to the Court under section 34(4), while section 35 concerns mid-term changes of officials. The Registrar therefore had no mandate to refuse registration of officials elected in an election absent court orders, and her impugned letter was made in excess of authority and was null and void. The court directed the Registrar to register the officials in the Form Q submitted on June 13, 2022. The petition was dismissed as filed out of time without leave under the Trade Unions Elections (Election Petition) Rules, 2014 and for failure to prove entitlement to the reliefs. Costs were awarded.

Key legal issues

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01

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

Holding

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.

Reasoning

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.

p. 23
02

Whether the Registrar's letter dated June 21, 2022 declining registration was valid

Holding

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

Reasoning

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.

p. 24
03

Whether the Petitioners were entitled to the reliefs sought in the Petition

Holding

The petition was dismissed as out of time and unproven

Reasoning

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).

p. 24
04

Whether the trial judge should recuse herself

Holding

The recusal application was dismissed as an abuse of process

Reasoning

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.

p. 11
05

Whether the 3rd Interested Party's preliminary objection should succeed

Holding

The preliminary objection was dismissed

Reasoning

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.

p. 12
06

The extent to which the court can address issues raised by interested parties

Holding

Issues for determination remain those presented by the principal parties; interested parties cannot introduce new issues

Reasoning

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.

p. 21

Legal principles established

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  • 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

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  1. 1.The application for recusal of the judge is dismissed with costs
  2. 2.The application dated January 6, 2023 is summarily dismissed
  3. 3.The Notice of Preliminary Objection by the 3rd Interested Party is dismissed
  4. 4.A finding that the Registrar's letter dated June 21, 2022 was in excess of her authority and is null and void
  5. 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. 6.The Petition in ELRC Petition No E194 of 2022 is dismissed
  7. 7.There shall be orders for costs

Authorities

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Legislation

  • Labour Relations ActSection 30 (appeals against decisions of the Registrar)
  • Labour Relations ActSection 34 (election of officials, including s 34(3) and s 34(4))
  • Labour Relations ActSection 35 (notification of officials, including s 35(2), (3), (4), (5), (6))
  • Labour Institutions ActSection 30 (Commissioner of Labour)
  • Labour Institutions ActSection 31 (Registrar of Trade Unions)
  • Trade Unions Elections (Election Petition) Rules, 2014Rules 3, 4, 5
  • Constitution of KenyaArticles 10, 23, 27, 41, 47, 73 (cited in the petition's reliefs)
  • Constitution of the Appellant Union (KMPDU Constitution)Article IV (National Officers of the Union), Article IX

Cases cited (17)

  • Clay Odari & 2 others v Kenya Petroleum Oil Workers Union & 8 others
    [2018] eKLR
  • Aloise A. Otiende vs. Boniface M. Munyao
  • Eliud Wanjohi Gwandaru v Samuel Waita K & 11 others
    [2021] eKLR
  • Halima Adan Ahmed v Seth Panyako, General Secretary Kenya National Union of Nurses & 2 others
    [2021] eKLR
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Macfoy v United Africa Co LTD
    [1961] 3 All ER 1169
  • Prayosha Ventures Limited vs. NIC Bank Ltd. & another; Beatrice Jeruto Kipketer & another (Interested party)
    2020 eKLR
  • Locabail (UK) Ltd v Bayfield Properties
    (2002) QB 451
  • Kaplan & Stratton V. Z Engineering Construction Ltd & 2 others
    (2000) KLR
  • Magill v Porter
    (2002) UKHL 47 (as cited: (2002) Z A C 357)
  • Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd
    (1969) E.A. 696
  • Methodist church of Kenya V Mohameed Fugicha & 3 others
    [2019] eKLR
  • Francis Karioki Muruatetu & another vs Republic & 5 others
    Sup. Ct. Petition 15 & 16 of 2015 (Consolidated); [2016] eKLR
  • Republic v Danson Mgunya
    [2016] eKLR
  • Owners of the Motor Vessel "Lillians" V Caltex Oil (Kenya) Ltd
    [1989]
  • Dorcas Nyambeki Nyakundi v Yusuf Ali
    [2021] eKLR
  • Cornel Mabatsi & 389 others v Registrar of Trade Unions & another; Kenya County Government Workers Union (Interested Party)
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

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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, "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.