Hesbon Lumumba M'mbolo & Ors v Registrar of Trade Unions
The bottom line
#Kenya's Employment Court ordered the Registrar of Trade Unions to register a new security guards' union because the existing one represents too few workers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the replying affidavit filed late should be struck out
- 2.Whether the Appeal is res judicata given pending proceedings in Civil Appeal No. 154 of 2019
- 3.Whether the question of sub judice arises
- 4.Whether integrity issues facing some Appellants bar registration
- 5.Whether the Registrar exercised her discretion lawfully in refusing to register the proposed Union
Key legal issues
#Res judicata
Res judicata does not apply because the earlier case concerned a Certificate of Recruitment under section 12, while this Appeal challenges refusal of registration under section 20 of the Labour Relations Act.
The prior judgment in Appeal No. 9 of 2018 dealt only with refusal to issue an interim Certificate of Recruitment under section 12 of the Labour Relations Act. The present proceedings challenge the Registrar's refusal to register the proposed Union under section 20. Though closely interwoven, the issues are distinct, so the bar of res judicata under section 6 of the Civil Procedure Act was not established.
Sub judice
Sub judice does not arise because Civil Appeal No. 154 of 2019, which challenged the Certificate of Recruitment decision, was withdrawn and terminated.
The pending Civil Appeal No. 154 of 2019 before the Court of Appeal had challenged this Court's order on the Certificate of Recruitment. Since the 1st Interested Party withdrew the Appeal and it was marked withdrawn on 6 December 2023, there were no concurrent proceedings over the same subject matter, and the sub judice objection fell away.
Integrity allegations against Appellants
The integrity objections were rejected for want of evidence and because the Registrar's decision was not based on them.
The 1st Interested Party alleged that some Appellants faced forgery charges and were not within the security sector, but produced no verifiable evidence to support the claims. Further, the Registrar's refusal letter did not rely on integrity concerns, so the Court found the allegations immaterial to the legality of the refusal.
Whether the Registrar exercised her discretion lawfully under section 14(1)(d) of the Labour Relations Act
The Registrar did not exercise her discretion lawfully; the existing union, with about 77,000 members out of roughly 400,000 unionisable employees, was not sufficiently representative.
Section 14(1)(d) permits refusal only where another registered trade union is sufficiently representative of the whole or a substantial proportion of the interests sought. Neither the Registrar nor the Interested Parties controverted that the sector has nearly 400,000 potential members against the 1st Interested Party's membership of about 77,000 (barely 20%). The Registrar also failed to conduct the inquiry required before rejecting an application, merely relying on documents placed before her. The refusal was therefore unlawful.
Legal principles established
#- Once a compliant application for registration of a trade union is made, the Registrar has no choice but to register it unless another sufficiently representative union exists; the Registrar must conduct an inquiry before refusing registration.
- In a regulated sector, the Registrar must proactively conduct an inquiry and cannot rely merely on records placed before her by the protagonists.
Court orders
#- 1.This Appeal be allowed
- 2.That the Registrar failed in her statutory duty in declining to register the proposed Kenya Union of Special and Professional Guards
- 3.That the Registrar do register the proposed Kenya Union of Special & Professional Guards within 30 days
- 4.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Appeal against the Registrar of Trade Unions' refusal under section 20 of the Labour Relations Act, 2007
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That this Appeal be allowed.
That the Registrar failed in her statutory duty in declining to register the proposed Kenya Union of Special and Professional Guards.
That the Registrar do register the proposed Kenya Union of Special & Professional Guards within 30 days.
The Registrar has to make an inquiry on any objection before arriving at a decision to reject or allow an application.
The 1st Interested Party cannot truly be suficiently representative of the whole or a substantial proportion of the interests of the 400,000 or so unionisable employees within the private security sector. It barely represents 20% of the unionisable employees in the sector.
Issues in the judgment
#The judgment quotes the Supreme Court authority referring to 'Employment and Labour Relations Act' which the judgment itself corrects as an error
Inconsistent spellings of the same party name within the judgment ('Hesbon' vs 'Hesborn')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hesbon Lumumba M’Mbolo & 5 others v Registrar of Trade Unions; Kenya National Private Security Workers Union & another (Interested Parties) [2021] KEELRC 2187 (KLR)[2021] KEELRC 2187 (KLR)10 Feb 2021applied
Cite this brief
#Cite this brief
Caselaw, "Hesbon Lumumba M'mbolo & Ors v Registrar of Trade Unions", Case Analysis (2024). Appeal (refusal of registration of Kenya Union of Special & Professional Guards), Kisumu. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/150/eng@2024-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.