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ELRCDismissedCause No. E033 of 2025 (consolidated with the Appeal by Bonface Mutie Kavuvi against the Registrar of Trade Unions)· [2025] KEELRC 2814 (KLR)

Luvayi & 2 others v Kivuvi & another; Kenya Union of Commercial Food and Allied Workers & another (Interested Parties) (Employment and Labour Relations Cause E033 of 2025 & Appeal E206 of 2025 (Consolidated)) [2025] KEELRC 2814 (KLR)

Employment and Labour Relations Court
9 October 2025
10,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court upheld a trade union's right to change its leadership without the Registrar hearing the removed official first.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court (M. Onyango, J) disposes of two consolidated suits: a claim by Benson Douglas Luvayi and the Kenya Union of Commercial Food and Allied Workers against their suspended General Secretary, Bonface Mutie Kavuvi, and an appeal by Kavuvi against the Registrar of Trade Unions' registration of changes effecting his suspension and the appointment of Andrew Kinyua M'Mukiri as Acting General Secretary. The dispute arose from a NEC meeting of 29th May 2025, convened by the 1st Deputy General Secretary and Assistant General Secretary after the General Secretary refused repeated requests to convene it, at which he was suspended. The court framed five issues and found: the meeting was properly convened since the constitution did not specify a convenor where the General Secretary's own conduct was in question and he had been duly served with notice; quorum was satisfied, as with deductions for incapacitated, deceased and ineligible members, the 12 attendees constituted two-thirds of the 18 members entitled to vote; and the Registrar lawfully registered the Form Q changes, section 35 of the Labour Relations Act imposing no duty to hear affected persons beforehand, with the court invoking constitutional avoidance. The appeal was dismissed; the Claimants' prayers were held resolved by the appeal decision or unproved and dismissed. The court made no order as to costs.

Key legal issues

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01

Whether the NEC meeting of 29th May 2025 was properly convened

Holding

The meeting was properly convened despite not being called by the General Secretary, since rule 32(b) does not specify a convenor where the General Secretary's own conduct is the subject, and he had refused repeated requests to convene; the notice was served on all NEC members including the Appellant, and the change of venue from Marble Arch Hotel to Tulia Gardens was justified by the Appellant's own letter causing the Hotel to decline admission.

Reasoning

Rule 11(c) vests convening power in the General Secretary, but the Appellant faced accusations and could not be expected to convene a meeting about his own conduct. Repeated requests to him failed. The court found the notice dated 21st May 2025 was sent to all members including the Appellant, who acknowledged it in his letter to the hotel. Relocation was necessitated by the Appellant's interference.

p. 18
02

Whether there was quorum at the meeting

Holding

Quorum was met: with deductions for incapacitated, deceased and ineligible members, only 18 members were entitled to attend and vote, and the 12 members attending constituted the required two-thirds.

Reasoning

Rule 11(i) requires a quorum of two-thirds of members entitled to attend and vote. The Registrar deponed that of 23 NEC members, the chairman was incapacitated, two were deceased, and others were ineligible as non-paid-up members or retrenched, leaving 18 entitled members; 12 attendees therefore met the two-thirds threshold.

p. 20
03

Whether the Registrar acted in accordance with the law in registering the change of officials

Holding

The Registrar acted lawfully; section 35 of the Labour Relations Act requires no hearing of affected persons before registering changes on a valid Form Q, and internal disputes have their own remedies under the union constitution and appeal to the ELRC.

Reasoning

Section 35(2)-(5) governs registration of changes of officials on Form Q. The Registrar may require evidence and refuse registration only if not satisfied as to validity or propriety. The court invoked constitutional avoidance, holding the Appellant's fair hearing and fair administrative action claims unnecessary, and noted remedies under rule 32(b)(ii) and section 34(4) of the Act.

p. 21

Legal principles established

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  • The Registrar of Trade Unions has no obligation to hear a person affected before registering a change of officials submitted on a valid Form Q under section 35 of the Labour Relations Act
  • Where the union constitution does not specify who convenes a NEC meeting when the General Secretary's conduct is in question, and the General Secretary has declined repeated requests to convene it, the meeting may lawfully be convened by other officials
  • Courts should apply the doctrine of constitutional avoidance and resolve disputes on non-constitutional grounds where possible

Court orders

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  1. 1.Dismissal of the Appellant's appeal against the decision of the Registrar of Trade Unions
  2. 2.Dismissal of the Claimants' claim, those prayers not resolved by the decision in the appeal not having been proved
  3. 3.No order as to costs

Authorities

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Legislation

  • Labour Relations ActSections 34(4), 35(1)-(6), 36(a) and (b), First Schedule, Second Schedule (Form Q)
  • Labour Relations Act, 2007Section 8(a)
  • Constitution of Kenya, 2010Article 41, Article 47, Article 50
  • Kenya Union of Commercial Food and Allied Workers ConstitutionRules 8, 9, 10, 11(a)-(i), 17, 18, 19, 23, 32(b), 33, 35

Cases cited (6)

  • Central Organization of Trade Unions v Benjamin Nzioka & Others, Civil Appeal No. 166 of 1993
    CACA No. 166 of 1993
  • Central Organization of Trade Unions v Johnson Ogendo & Another, Civil Appeal No. 167 of 1993
    CACA No. 167 of 1993
  • Jophinus Musundi & 6 others v Registrar of Trade Unions
    [2017] KEELRC 1187 (KLR)
  • Royal Media Services Ltd v Attorney General
    (2018)
  • Saire and another v Cabinet Secretary for Lands and Planning and another
    [2024] KEELRC, Petition No. 68 of 2022
  • James Willy Kagori v Chairman Extra Ordinary Meeting of Michimikuru Factory Limited and 2 others, Maurice Kobia Dickson (Interested Party)
    [2022], Judicial Review No. E002 of 2021
On appeal from
Registrar of Trade Unions
Jurisdiction invoked
Section 34(4) of the Labour Relations Act, 2007 (appeal to the ELRC against decisions of the Registrar of Trade Unions) and the court's employment and labour relations jurisdiction under Article 162(2) of the Constitution

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, "Luvayi & 2 others v Kivuvi & another; Kenya Union of Commercial Food and Allied Workers & another (Interested Parties) (Employment and Labour Relations Cause E033 of 2025 & Appeal E206 of 2025 (Consolidated)) [2025] KEELRC 2814 (KLR)", Case Analysis (2025). Cause No. E033 of 2025 (consolidated with the Appeal by Bonface Mutie Kavuvi against the Registrar of Trade Unions). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2814/eng@2025-10-09

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