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ELRCOtherPetition dated 14th August, 2023· [2024] KEELRC 8 (KLR)

Onyancha & another (Suing on behalf of the proposed, Kenya Medical Doctors’ Union) v Registrar of Trade Union (ROTU) & another (Petition E017 of 2023) [2024] KEELRC 8 (KLR)

Employment and Labour Relations Court
23 January 2024
HWHellen Wasilwa
3,156 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court halted a bid to force registration of a doctors' union because the Registrar was never properly served, restarting the case.

What this practically means

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Executive summary

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The two petitioners, medical officers and promoters of a proposed trade union, the Kenya Medical Doctors Union, petitioned the court under Articles 22, 23, 258 and 259 of the Constitution seeking declarations and judicial review orders (mandamus and prohibition) compelling the Registrar of Trade Unions to act on their application for a promotion certificate and registration of the union under sections 12, 13, 14, 17, 18 and 19 of the Labour Relations Act, No. 14 of 2007, alleging a statutory failure and violations of Articles 36 and 41 following over a year of silence on their application of 7th July 2022. The respondents did not enter appearance despite alleged service, and the petition proceeded undefended, with the petitioners filing written submissions relying on authorities on the rule of law, irrationality, procedural impropriety, the duty to give reasons, legitimate expectation and costs. In determining the matter, the court found that service on the 1st Respondent had been effected only by a WhatsApp message to the Registrar in her personal capacity, which was improper, and that the Registrar had asked the petitioners to serve her office, which was never done. The court held that its earlier direction that the petition proceed ex parte was made in error on the assumption of proper service. It reviewed and set aside that direction of 31st October 2023, directed the petitioners to properly serve the petition and the ruling upon all parties, and made no order as to costs, reserving them to the cause. The merits of the petition remain for determination after proper service.

Key legal issues

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01

Properness of service on the respondents

Holding

Service by WhatsApp message to the Registrar in her personal capacity was improper; the ex parte direction made on the assumption of proper service was made in error and was reviewed

Reasoning

The court recorded that despite orders for proper service, service on the 2nd Respondent was physical but service on the 1st Respondent was effected only by a WhatsApp message to the Registrar personally. The Registrar asked the petitioners to serve her office, which was never done. The court therefore revisited its 31/10/23 direction, found it was made in error, reviewed it, and directed fresh proper service of the petition and the ruling before the petition could proceed.

p. 6

Legal principles established

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  • A direction that a suit proceed ex parte founded on an erroneous assumption of proper service is liable to be reviewed and set aside; proper service is a precondition to an undefended hearing

Court orders

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  1. 1.Review and setting aside of the court's direction of 31/10/23 that the petition proceed ex parte
  2. 2.Direction that the petitioners properly serve the petition upon all parties concerned, including this ruling, to enable the petition proceed appropriately
  3. 3.Costs in the cause

Authorities

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Legislation

  • Labour Relations Actsections 4, 12(2), 12(3), 13, 14, 17, 18(1)&(2), 19
  • Constitution of Kenya, 2010Articles 3(1), 10, 22(1), 23(1), 24(1), 258, 259, 162(2), 165, 27, 28, 30, 36, 41, 42(2)(c), 73, 75

Cases cited (16)

  • Institute of Social Accountability and Another Vs National Assembly & 4 Others
    [2015] eKLR
  • Salaries and Remuneration Commission & Another Vs Parliamentary Service Commissions & 15 Others; Parliament & 4 Others (Interested parties)
    [2020] eKLR
  • Republic Vs Vice Chancellor Moi University & 2 Others Ex parte Benjamin J Gikenyi Magare
    [2019] eKLR
  • Pastoli V Kabale
    [2008] 2 EA 300
  • Republic Vs Chief Licensing Officer & Another Ex parte Tom Mboya Onyango
    [2017] eKLR
  • Oindi Zaippeline & 39 Others V Karatina University & Another
    [2015] eKLR
  • In re Westminster City Council
    [1986] A.C. 668
  • R. v. DPP ex p. Kebilene
    [1999] 3 WLR 972 (HL)
  • Republic v. Nairobi City County & Another ex parte Wainaina Kigathi Mungai
    High Court Judicial Review Misc. Case No. 356 of 2013; [2014] eKLR
  • Republic vs. Kenya Revenue Authority, ex parte Aberdare Freight Services Limited
    [2004] 2 eKLR 530
  • South African Veterinary Council v. Szymanski
    2003 (4) S.A. 42 (SCA)
  • Administrator, Transvaal v. Traub
    1989 (4) SA 731 (A)
  • Attorney-General of Hong Kong v. Ng Yuen Shiu
    [1983] 2 All ER 346 (PC)
  • Hauptfieisch v. Caledon Divisional Council
    1963 (4) SA 53 (C)
  • Walele v. City of Cape Town and Others
    2008 (6) S.A 129 (C.C.)
  • Jasbir Singh Rai & 3 others Vs Tarlochan Singh Rai & 4 Others
    [2014] eKLR
Jurisdiction invoked
Articles 22(1), 23(1), 258 and 259 of the Constitution as read with Article 162(2)/165

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, "Onyancha & another (Suing on behalf of the proposed, Kenya Medical Doctors’ Union) v Registrar of Trade Union (ROTU) & another (Petition E017 of 2023) [2024] KEELRC 8 (KLR)", Case Analysis (2024). Petition dated 14th August, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/8/eng@2024-01-23

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