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ELRCAllowedMemorandum of Appeal dated July 18, 2022 (number not stated in judgment)· [2023] KEELRC 2006 (KLR)

Harrison & 3 others (Suing as Promoters of the Proposed Kenya Musicians Union) v Registrar of Trade Unions (Civil Appeal E130 of 2022) [2023] KEELRC 2006 (KLR)

Employment and Labour Relations Court
22 August 2023
1,508 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 and Labour Relations Court ordered the Registrar of Trade Unions to register the Kenya Musicians Union, confirming specialised unions can coexist with general ones.

What this practically means

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Executive summary

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Kenyan musicians who sought to register the Kenya Musicians Union appealed to the Employment and Labour Relations Court under Section 30 of the Labour Relations Act against the Registrar of Trade Unions' decision of October 25, 2021 refusing registration. The refusal rested solely on an objection by the Kenya Union of Entertainment and Music Industry Employees (KUEMIE), which the Registrar considered sufficiently representative of musicians. The Registrar also contended that the Appellants had failed to make a substantive registration application within 6 months and ought to have appealed to the National Labour Board. The Court held that the National Labour Board's role under Section 19 is purely consultative and that appeals from the Registrar lie to the Industrial Court (ELRC) under Section 30, so the Registrar misapprehended the law. Crucially, by Memorandum of Understanding the objector had withdrawn its objection and committed to supporting registration of the new union. The Court reaffirmed that trade unions with specialized orientation may be registered notwithstanding the existence of a general union in the same field, tracing this line from BIFU v Kenya Bankers Association and KUCFAW through more recent ELRC decisions, and observed that today's musicians cannot be lumped with the broader entertainment industry. Relying on Section 4 of the Act, Articles 36 and 41 of the Constitution and ILO Convention 87, the Court found no impediment in law or fact to registration. The appeal was allowed; the Respondent was ordered to register the union forthwith, issue a certificate of registration and enter its name in the appropriate register, with no order on costs.

Key legal issues

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01

Status of the National Labour Board in the registration process

Holding

The Board is consultative only; the Appellants did not need to appeal to it.

Reasoning

Section 19 of the Labour Relations Act requires the Registrar to consider registration in consultation with the National Labour Board, but the Board is not the decision-maker and is not an appellate body. Section 30 provides that any person aggrieved by the Registrar's decision may appeal to the Industrial Court (ELRC) within 30 days. The Registrar therefore misapprehended the law in requiring an appeal to the Board.

p. 3
02

Effect of the withdrawal of the objection

Holding

With the sole objection withdrawn through the MOU, there is no impediment to registration.

Reasoning

Registration was denied solely because KUEMIE was said to sufficiently represent musicians. KUEMIE has since bound itself by MOU to support registration of the Kenya Musicians Union, recognising that denial of registration was detrimental to both and to the music community. The Appellants have an identifiable community of interests, and there is no better indicator that no registered union sufficiently represents musicians than the fact that the objector of over 50 years has never negotiated a CBA for musicians.

p. 4
03

Registration of specialized trade unions

Holding

Musicians, as a specific industry player with distinct interests, merit their own trade union.

Reasoning

The Court has consistently upheld registration of trade unions with specialized orientation, from BIFU's registration as an offshoot of KUCFAW to more recent decisions. As the economy evolves, emerging categories of workers require unions that sufficiently represent their interests; today's musicians cannot be lumped with other entertainment industry workers.

p. 4

Legal principles established

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  • The National Labour Board's role in trade union registration is purely consultative; appeals against the Registrar's decisions lie to the ELRC under Section 30 of the Labour Relations Act.
  • Trade unions with specialized orientation may be registered notwithstanding the existence of a general union covering the same field.
  • Continued refusal to register a union where the sole objector has withdrawn its objection would be incompatible with the constitutional freedom of association.

Court orders

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  1. 1.The Appeal is allowed
  2. 2.The Respondent shall forthwith register Kenya Musicians Union
  3. 3.The Respondent shall issue Kenya Musicians Union with a certificate of registration and enter the Kenya Musicians name in the appropriate register
  4. 4.No order on the costs

Authorities

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Legislation

  • Labour Relations ActSection 14
  • Labour Relations ActSection 12
  • Labour Relations ActSection 13
  • Labour Relations ActSection 19
  • Labour Relations ActSection 30
  • Labour Relations ActSection 4
  • Constitution of KenyaArticles 36 and 41
  • ILO Convention 87 on Freedom of Association and Protection of the Right to Organize
  • Electronic Case Management Practice Directions, 2020Practice Direction 6[2]

Cases cited (4)

  • Peter Karegua Mwangi & 6 others v. Registrar of Trade Unions & Another; Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers [KUDHEIHA] [Interested Party]
    [2021] e-KLR
  • Benedict Omulama & 8 others v Registrar of Trade Unions & Another
    [2014] e-KLR
  • Mugambi & 4 others v Registrar of Trade Unions
    [Appeal E 145 of 2021] [2022] KEELRC4145 [KLR] [29th September 2022]
  • Banking Insurance and Finance Union [BIFU] v Kenya Bankers [Employers] Association and Kenya Union of Commercial Food and Allied Workers [KUCFAW]
    Industrial Court Cause No 75 of 1999
On appeal from
Registrar of Trade Unions (decision refusing registration)
Jurisdiction invoked
Section 30 of the Labour Relations Act - appeal to the Industrial Court (E&LRC) against a decision of the Registrar

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, "Harrison & 3 others (Suing as Promoters of the Proposed Kenya Musicians Union) v Registrar of Trade Unions (Civil Appeal E130 of 2022) [2023] KEELRC 2006 (KLR)", Case Analysis (2023). Memorandum of Appeal dated July 18, 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2006/eng@2023-08-22

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