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Case Brief · caselaw.co.ke
ELRCPartially AllowedJudicial Review No. E028 of 2026

Public Transport Operators Union & another v Registrar of Trade Unions & others

Employment and Labour Relations Court of Kenya
28 September 2026
2,712 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the Registrar of Trade Unions cannot sit on registration applications for years, but stopped short of ordering the federation registered.

What this practically means

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Executive summary

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The Applicants, two trade unions, obtained leave on 17 March 2026 and moved the ELRC by notice of motion seeking an order of mandamus compelling the Registrar of Trade Unions to forthwith issue a Certificate of Registration for the proposed Federation of Kenya Workers Congress (FKWC), plus costs. They argued that after a Gazette Notice of 17 December 2023 elicited no objections within the 21-day period, the Registrar was under a mandatory statutory duty to register the federation; the only objection came two months late, and the refusal violated their freedom of association. The Registrar opposed, contending the application was premature, misconceived and an abuse of process: issuance of a certificate is not a ministerial act but contingent on satisfaction of statutory prerequisites under the Labour Relations Act, and she was awaiting the National Labour Board's advice. The court, per Gakeri J, framed one issue: whether mandamus was merited. It applied the eight-factor mandamus test from Schon Noorani and the statutory scheme in sections 16, 19 and 20 of the Act. Noting that four years had passed since the Registrar's February 2022 letter deferring the matter to the National Labour Board, and that no written refusal in Form D had ever been communicated, the court held the inaction prima facie amounted to a refusal to perform a statutory duty, infringing the Applicants' constitutional rights, and followed the Ogolla decision that the Registrar cannot abdicate her duty behind the consultation requirement. However, the court declined to order registration itself, holding it cannot usurp the Registrar's functions. It directed the Registrar to consider the application and respond within 14 days, with each party bearing their own 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 circumstances of this case merit an order of Mandamus compelling the 1st Respondent to issue a Certificate of Registration for the proposed Federation of Kenya Workers Congress (FKWC)

Key legal issues

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01

Whether the Registrar's four-year inaction on the registration application, attributed to awaiting the National Labour Board's advice, amounted to a refusal to perform a statutory duty enforceable by mandamus

Holding

Yes - the delay was inordinate and prima facie amounted to a refusal to perform the functions mandated on the Registrar's office, infringing the Applicants' constitutional rights

Reasoning

The Registrar's letter of 2 February 2022 indicated the application would be placed before the National Labour Board for advice. Four years elapsed with no communication. The Registrar alleged the Applicants had not met registration requirements but produced no evidence of a written refusal as required by section 20. Following the Ogolla decision, consultation with the Board is not binding and the Registrar retains the legal duty to decide. The inaction infringed the Applicants' rights under Articles 27, 41 and 47.

p. 9
02

Whether the Court could order the Registrar to issue the Certificate of Registration

Holding

No - the Court cannot usurp the Registrar's statutory functions by ordering registration; instead the Registrar was directed to consider and respond to the application within 14 days

Reasoning

The Court agreed with the 1st Respondent that judicial review remedies address the legality of the decision-making process, not the conferment of registration where statutory conditions under sections 16 and 19 of the Labour Relations Act have not been independently verified by the Court. Having found the delay infringed the Applicants' rights, the appropriate remedy was a mandatory order compelling the Registrar to consider and respond to the application within a fixed period, not an order of registration.

p. 11

Legal principles established

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  • Mandamus lies to compel a public authority to perform a public legal duty; the Registrar of Trade Unions cannot indefinitely delay action on a registration application by claiming to await the National Labour Board's advice, since the Board's role is consultative only and the statutory duty to decide rests on the Registrar
  • A refusal to register a trade union, employers' organisation or federation must be communicated in writing with reasons in Form D under section 20 of the Labour Relations Act

Court orders

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  1. 1.The 1st Respondent is directed to consider the Applicants' application for registration and respond to the same within 14 days from the date of the judgment
  2. 2.Each party to bear their own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Judicial review jurisdiction of the ELRC under Article 27, 41 and 47 of the Constitution (alleged contravention of fundamental rights and freedoms), pursuant to leave granted on 17 March 2026

Relief refused

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Order of mandamus compelling the 1st Respondent to forthwith issue a Certificate of Registration for the Federation of Kenya Workers Congress (FKWC)

The Court cannot usurp the functions of the Registrar of Trade Unions by ordering registration of the Federation

p. 11

Costs

Parties shall bear their own 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.

Prima facie the 1st Respondent's action amount to a refusal to perform the functions specifically mandated upon her office. Such refusal is an infringement of the Applicants' constitutional rights, which begs for the intervention of this Court.
p. 9Refusal by inaction as infringement of constitutional rights
the court is in agreement with the 1st Respondent that this Court cannot usurp the functions of the Registrar of Trade Unions by ordering the registration of the Federation
Limits of judicial review - court cannot order registration
the 1st Respondent is directed to consider the applicants and respond to the same within 14 days from the date hereof. Parties shall bear their own costs.
p. 11Final orders and costs

Issues in the judgment

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minor

Interested party named 'The Artoney General' - apparent misspelling of Attorney General

minor

Judgment delivered 2026 but relies on COVID-19 directions of 2020 for virtual delivery

minor

Gazette Notice dated 17 December 2023 but Registrar's letter referenced is dated 2 February 2022 - chronology unclear

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, "Public Transport Operators Union & another v Registrar of Trade Unions & others", Case Analysis (2026). Judicial Review No. E028 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2659/eng@2026-09-28

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