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ELRCPartially AllowedPetition dated 14th August 2023

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)

Employment and Labour Relations Court
4 July 2024
6,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioners, medical doctors promoting the proposed Kenya Medical Doctors Union, petitioned the Employment and Labour Relations Court seeking declarations and judicial review orders (mandamus and prohibition) compelling the Registrar of Trade Unions to issue a promotion certificate under section 12 of the Labour Relations Act and to register the union, claiming the Registrar failed for over a year to respond to their application of 7th July 2022, contrary to Articles 36 and 41 of the Constitution and sections 4, 12, 14, 17, 18 and 19 of the LRA. The Registrar, through the affidavit of Beatrice Mathenge, opposed the petition, arguing the 2nd Petitioner lacked locus, the application was defective, the union's name was confusingly similar to KMPDU, and staffing gaps caused the delay. The 3rd Respondent (Attorney General) argued mandamus could not issue absent proof of service and that the court cannot usurp the Registrar's statutory discretion. The court, Wasilwa J, framed three issues: locus, whether the court can compel issuance of a promotional certificate, and remedies. It held the 2nd Petitioner had locus under Article 22(1) notwithstanding not being an original promoter. It declined to compel issuance of the certificate, holding the Registrar must first consider the application's viability under section 12(3). The court ordered the Registrar to consider and respond to the application within 14 days. Judgment delivered 4th July 2024 with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petitioners are the right parties to file this petition.
  2. 2.Whether this court can compel the Registrar of Trade Union to issue promotional certificate for establishment of the proposed trade unions.
  3. 3.What remedies the court can grant in the circumstances.

Key legal issues

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01

Locus standi of the 2nd Petitioner who was not one of the two promoters in the application

Holding

The 2nd Petitioner has locus under Article 22(1) of the Constitution to seek enforcement of constitutional rights despite not being an original promoter

Reasoning

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.

p. 12
02

Whether the court can compel the Registrar of Trade Unions to issue a promotional certificate

Holding

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

Reasoning

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.

p. 12

Legal principles established

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  • 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

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  1. 1.The Registrar of Trade Unions is compelled to consider the Petitioners' application and respond to their request within 14 days
  2. 2.No order of costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 23(1) as read with Articles 22, 162(2), 165, 258 and 259 of the Constitution

Relief refused

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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

p. 12

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

p. 12

Costs

There will be no order of costs.

Quotable passages

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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.
p. 12locus standi
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.
p. 12statutory discretion of Registrar
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.
p. 13final orders/disposition

Issues in the judgment

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minor

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'

minor

Affidavit date typo: 'afidavits of 20th February, 20224'

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) & 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.