Onyancha & another (Suing on behalf of the proposed Kenya Medical Doctors' Union) v Registrar of Trade Union (ROTU) & 2 others (Petition E017 of 2023) [2024] KEELRC 1734 (KLR)
The bottom line
#Kenya's Employment Court ordered the Registrar of Trade Unions to actually decide a union registration application within 14 days, but stopped short of forcing approval.
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 Petitioners are the right parties to file this petition.
- 2.Whether this court can compel the Registrar of Trade Union to issue promotional certificate for establishment of the proposed trade unions.
- 3.What remedies the court can grant in the circumstances.
Key legal issues
#Locus standi of the 2nd Petitioner who was not one of the two promoters in the application
The 2nd Petitioner has locus under Article 22(1) of the Constitution to seek enforcement of constitutional rights despite not being an original promoter
The court held that the petition is a constitutional petition seeking equitable remedies under Article 41. Article 22(1) grants every person the right to institute court proceedings claiming a right or fundamental freedom has been denied, violated or infringed. The fact that the 2nd Petitioner was not one of the two applicants for the promotion certificate is not a bar to her enforcing a constitutional right. The objection to locus was therefore disregarded.
Whether the court can compel the Registrar of Trade Unions to issue a promotional certificate
The court cannot compel issuance of the certificate; the Registrar must first exercise her statutory discretion under section 12(3) of the Labour Relations Act by considering the application
Section 12(3) permits the Registrar to decline the certificate if the application is defective or the name is similar to an existing union. The Registrar must consider the viability of the proposed union before issuing the certificate. Since the Registrar never considered the application due to staffing gaps, the appropriate remedy is mandamus in the nature of an order to consider and decide the application, not an order compelling issuance.
Legal principles established
#- A party not named in the original application for a promotion certificate may nonetheless have locus to enforce a constitutional right
- The remedy where the Registrar has not considered an application for a promotion certificate is an order compelling her to consider and respond, not to issue the certificate
Court orders
#- 1.The Registrar of Trade Unions is compelled to consider the Petitioners' application and respond to their request within 14 days
- 2.No order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 23(1) as read with Articles 22, 162(2), 165, 258 and 259 of the Constitution
Relief refused
#Declarations that the Registrar's failure to issue promotion certificate was unconstitutional and deemed issuance of the certificate
The Registrar has not had the opportunity to consider the viability of the proposed union; the court cannot compel issuance without her exercising statutory discretion
Orders of mandamus compelling the Registrar to issue a promotion certificate and registration certificate, and an order of prohibition
The Registrar must consider the application on its merits; the court will not usurp her statutory discretion
Costs
There will be no order of costs.
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.
The preposition that the Petitioner lacks locus to file this petition is therefore without any merit and is disregarded.
My understanding of this provision is that the Registrar of Trade Unions (RTU) is not to issue the promotional certificate blindly but must consider its viability before giving directions.
It is therefore this court's position that the remedy available to the Petitioners at this point is to compel the Registrar of Trade Unions (RTU) to consider their application and respond to their request within 14 days. There will be no order of costs.
Issues in the judgment
#Petitioner identity inconsistently stated: paragraph 2 describes the 1st Petitioner as a medical officer/registrar and the 2nd as a Nakuru medical officer, but paragraph 30 refers to the 1st Petitioner as 'Yvonne Kwamboka'
Affidavit date typo: 'afidavits of 20th February, 20224'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyancha & another (Suing on behalf of the proposed Kenya Medical Doctors' Union) v Registrar of Trade Union (ROTU) & 2 others (Petition E017 of 2023) [2024] KEELRC 1734 (KLR)", Case Analysis (2024). Petition dated 14th August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1734/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.