Muiruri & 5 others (Kenya Aircraft Maintenance Personnel Union Represented by its Promoters and Applicants) v Registrar of Trade Unions (Civil Appeal 472 of 2018) [2024] KECA 1188 (KLR)

called “Kenya Aircraft Maintenance Personnel Union” (hereinafter “KAMPU”). The Appellants had filed the first appeal in the Employment and Labour Relations Court at Nairobi (hereinafter “ELRC”), which appeal was supported by an affidavit sworn on 29th November 2017 by Paul Mungai Muiruri, one of the promoters of KAMPU. 2. The Appellants deponed that on 23rd February 2017, they received a certificate in accordance with section 12 of Labour Relations Act, 2007, certifying that they had been authorized to undertake lawful activities in order to establish a trade union, and that the application for the registration could be made within six months. Upon receipt of the certificate, the Appellants embarked on a recruitment drive and had recruited a total of 204 members as at the time of filing the appeal at the ELRC. The Appellants then lodged an application for registration in terms of section 18 of the Labour Relations Act, 2007 and claimed that they had satisfied all requirements under the section. 3. The Appellants further averred that the membership of KAMPU comprised aircraft maintenance personnel including aircraft maintenance technicians, technical assistants and licensed aircraft maintenance engineers employed by airlines registered or licensed to operate in Kenya or employed by an Approved Maintenance Organisation (AMO) recognized by a competent authority in Kenya. Further, that the Respondent, upon receipt of the application did not call for further information for the purpose of evaluating the application, and being satisfied with the formal requirements of the Applicants, caused Gazette Notice No. 6761 to be issued under the Labour Relations Act and a similar notice published in the newspapers pursuant to section 14, 15 and 17 of the Act, notifying of the receipt of the application for registration of KAMPU. 4. The Appellants contended that they however received communication from the Respondent by a letter dated 30th October 2017 communicating the decision of National Labour Board to refuse registration of KAMPU, for the primary reason that the intended sector of coverage was already sufficiently represented by Kenya Aviation Workers Union (KAWU) and Aviation & Airport Service Workers Union (AASWU). It was their contention that they were not consulted or given an opportunity to be heard on whether or not KAWU and AASWU sufficiently represented their interest. Further, the Appellants, being former members of KAWU, resigned voluntarily for the reason that KAWU did not represent their views and did not understand the Appellants’ field of work since its officials were not from that field. Additionally, that the Appellants were not members of AASWU and AASWU had not signed a recognition agreement with Kenya Airways where most of the Appellants and members of KAMPU were employees, and neither KAWU nor AASWU made any provision and representation for the protections and promotion of the interest of the Appellants and other aircraft maintenance personnel. 5. Thus, the Appellants’ case was that the refusal to register KAMPU adversely affected their interests, rights and fundamental freedoms and other members of KAMPU, since they lacked a recognized collective body to represent them. It was their further averment that the failure by the Registrar of Trade Unions to register KAMPU affected over 200 aircraft maintenance personnel who were unable to exercise their freedom of association since they were not members of KAWU or AASWU. It was also their assertion that there was an ongoing case between KAWU and ASSWU in this Court, following the decision delivered on 2nd December 2016 by the ELRC (Nduma Nderi, J) in Civil Application No. 274 of 2016 to deregister KAWU, which led to the publication of Gazette Notice Number 10372 by which KAWU was deregistered. 6. They reiterated that the Constitution of Kenya, 2010, the Labour Relations Act, 2007 and ILO Conventions 87 and 98 guarantees every Kenyan the right to belong to and participate in a trade union of choice, the Constitution espoused competitive trade unionism as opposed to sector and trades, the principle of freedom of choice, one could seek to join an association, organisation or union of https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 2

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one’s choice and the decision not to register KAMPU amounted to failure to uphold Article 41 of the Constitution of Kenya 2010 by which every Kenyan was guaranteed fair labour practices. They contended that the Registrar of Trade Unions can register more than one union in one industry, and gave examples of trade unions registered in the education and transport sectors. 7. The Respondent did not file any response to the Appellants’ claim in the ELRC. 8. The trial Judge (Onesmus Makau, J) after considering the Appellants’ pleadings, evidence and submissions found that section 14 (1) of the Labour Relations Act limits the right to join and form a trade union and the freedom of association in circumstances where there exists another trade union which sufficiently represents the whole or substantial proportion of interest in an industry or sector. In addition, that the Respondent complied with the said procedural requirements of seeking objections from interested parties and consulting with the National Labour Board (NLB), which objected to the registration of the new union on ground that there already was in existence KAWU and AASWU in the aviation sector, which was not denied by the Appellants. Further, that the Appellants had not demonstrated that the Respondent breached the law by not inviting them to a hearing before refusing to register the new union, since under section 20 of the Act, if the Respondent is not satisfied that the trade union does not meet the requirement for registration, her duty ends with form D set out in the Second Schedule to the Act which is a notice of refusal of registration and indicating reasons therefor. Therefore, that there is no requirement of the law to hear the Appellants whose right to a hearing is only through appeal to the ELRC. The learned Judge in conclusion found that the refusal to register the Appellants’ proposed new union was procedurally and substantively done within the law. 9. The Appellants, being aggrieved by the decision, lodged the instant appeal and have raised twelve (12) grounds of appeal in their Memorandum of Appeal dated 20th December 2018 and lodged on 21st December 2018. The grounds are as follows: 1. The learned Judge erred in law and fact in finding that Kenya Aviation Workers Union (KAWU) and Airport Service Workers Union (AASWU) sufficiently represent the interest of the Appellants. 2. The learned Judge erred in law and fact in failing to find that the Registrar of Trade Unions had previously lawfully registered more than one union in one industry. For example Kenya Union of Post Primary Education Teachers; Kenya Union of Pre- primary Education Teachers; University Academic Staff Union; Kenya Private Teachers School’ Teachers which were all registered regardless of the existence of Kenya National Union of Teachers. 3. The learned Judge erred in law and fact in upholding the Registrar of Union’s decision in failing to consider that no objection to the registration of KAMPU was raised. 4. The learned Judge erred in law and fact in finding ha the Registrar of Trade unions complied with the procedural requirement by delegating the powers and decision on whether or not to register a trade union to the National Labour Board. 5. The learned Judge erred in law and fact in failing to find that the decision refusing registration of KAMPU was made by the National Labour Board and not the Registrar of Trade Unions as it ought to have been. 6. The learned Judge erred in law and fact in failing to finding that the Constitution 2010, the Labour Relations Act, 2007 and ILO Convention 87 and 98 which guarantee every Kenyan the right to freedom of association, which includes the right to form, belong to and participate in a trade union of one’s choice, impelled the Registrar of Trade Union to register the Kenya Aircraft Maintenance Personnel Union (KAMPU). https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 3

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7. The learned Judge erred in law and fact in failing to find that neither KAWU nor AASWU has made any provision for the protection and promotion of the interest of the Appellant. 8. The learned Judge erred in law and fact in failing to consider that the Constitution espouses competitive trade unionism as opposed to sectors and trades. 9. The learned Judge erred in law and fact in failing to consider the principle of freedom of choice where one can seek to join an association, organization or union of one’s choice. 10. The Learned Judge erred in law and fact in failing to uphold Article 41 of the Constitution by which every Kenyan is guaranteed fair labour practices. 11. The learned Judge erred in law and fact in failing to find that the failure by the Registrar of Trade Unions to register KAMPU has affected over 200 aircraft maintenance personnel who are unable to exercise their freedom of association as they are not members of either KAWU or AASWU. 12. The learned Judge erred in law and fact in falling to consider the Appellant’s evidence before him in reaching the decision. 10. The Appellants therefore pray that the judgment of Onesmus Makau, J delivered on 12th October 2018 be set aside, and that this Court makes an order compelling the Registrar of Trade Unions to unconditionally register the Kenya Aircraft Maintenance Personnel Union, and to issue a Certificate of Registration and enter the name and details of the trade union in the Register of trade unions in accordance with section 19 (1) of the Labour Relations Act, 2007. Lastly, that the costs of the appeal be awarded to the Appellant. 11. We heard the appeal on this Court’s virtual platform on 31st January 2024, and learned counsel Mr. Nicholas Weru appeared for the Appellants and highlighted written submissions dated 30th June 2023, while there was no appearance for, nor any submissions filed by the Respondent, despite having being duly served with a hearing notice. In commencing our determination of the appeal, we are mindful of the duty of this Court as a second appeal Court, as set out in the decision of this Court in Stanley N. Muriithi & Another vs Bernard Munene Ithiga [2016] eKLR. This duty is to confine ourselves to matters of law, unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. We are however mindful that failure on the part of the first appellate court to re-evaluate the evidence tendered before the trial court and as a result, arriving at the wrong conclusion is a point of law. 12. The Appellants’ counsel identified one issue for determination, namely whether the Appellants’ application for registration of a union to be known as the Kenya Aircraft Maintenance Personnel Union (KAMPU) should be allowed. Reliance was in this regard placed on Articles 36 and 41 (2) (c) of the Constitution of Kenya, 2010 which give every worker the right to form join or participate in the activities and programs of a trade union, and section 4 (1) (a) of the Labour Relations Act, which provides that every employee has the right to participate in forming a trade union or federation of trade unions and join a trade union or leave a trade union. The decision by this Court in Kenya Plantation & Agricultural Workers Union vs David Benedict Omulama & 9 Others [2017) eKLR was cited for the propositions that section 14(1)(d)(i) of the Labour Relations Act must not be construed subjectively in relation to the facts of a case without appreciating whether the interest to the proposed union is fundamentally different from the interests covered by the existing union; that there is a tendency among some established trade unions to unreasonably curtail the right of association of new players https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 4

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for fear of competition; and that there was need for a union which represents the specialized needs of workers as opposed to forcing the workers to join a general and giant trade union. 13. In addition, that the question of whether or not there exists a trade union which is sufficiently representative of the whole or of a substantial portion of the Appellants’ interests cannot reasonably and fairly be determined without giving applicants an oppo1tunity to make representations on the matter, and they were not given an opportunity to be heard on whether KAWU and AASWU sufficiently represent their interests or why they sought to register KAMPU despite the existence of KAWU and AASWU neither were they supplied with the information and materials which the Respondent relied on in making the decision to decline registration of the union. Lastly, that had the Appellants been given a chance to be heard, they would have demonstrated to the Respondent that they were initially members of KAWU but had voluntarily resigned from the said union due to lack of proper representation. 14. It is not disputed that the Constitution under Article 41(2)(c) provides for the right of every worker to form, join or participate in the activities of a trade union as part of the right to fair labour practice. In addition, Article 36 on the freedom of association includes the right to form, join or participate in the activities of an association of any kind, and provides that registration of an association may not be withheld or withdrawn unreasonably. Section 14 of the Labour Relations Act in this regard provides as follows with regards to the requirements for registering a trade union: 1. A trade union may apply for registration if— a. the trade union has applied for registration in accordance with this Act; b. the trade union has adopted a constitution that complies with the requirements of this Act, including the requirements set out in the First Schedule; c. the trade union has an office and postal address within Kenya; d. no other trade union already registered is— i. in the case of a trade union of employers or of employees, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration; or ii. in the case of an association of trade unions, sufficiently representative of the whole or a substantial proportion of the trade unions eligible for membership thereof: Provided that the Registrar shall, by notice in the Gazette and in one national daily newspaper with wide circulation, notify any registered trade union, federation of trade unions or employers’ organisations which appear to him to represent the same interest as the applicants of the receipt of such application and shall invite the registered trade union federation of trade unions or employers’ organisation concerned to submit in writing, within a period to be specified in the notice, any objections to the registration; e. subject to subsection (2), only members in a sector specified in the constitution qualify for membership of the trade union; f. the name of the trade union is not the same as that of an existing trade union, or sufficiently similar so as to mislead or cause confusion; https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 5

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2. g. the decision to register the trade union was made at a meeting attended by at least fifty members of the trade union; h. the trade union is independent from the control, either direct or indirect, of any employer or employers’ organisations; and i. the trade union’s sole purpose is to pursue the activities of a trade union Notwithstanding the provisions of subsection (1)(d), the Registrar may register a trade union consisting of persons working in more than one sector, if the Registrar is satisfied that the constitution contains suitable provisions to protect and promote the respective sectoral interests of the employees. 15. The question that we need to answer in this appeal is whether the finding that the Appellants did not meet the requirement of being sufficiently representative of the interests of their industry or sector was unconstitutional and in error. There are three limbs to this question. The first limb is that of the constitutionality of the requirement that a trade union should be representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration, and specifically whether this is an unreasonable limitation to the right to fair trade practices and freedom of association. A similar situation arose in the ELRC in the case of Kenya Union of Commercial, Food &Allied Workers vs Attorney General & Another; Central Organization of Trade Unions (Interested Party), (2020) eKLR wherein the petitioners challenged the constitutionality of section 54(1) of the Labour Relations Act which requires a simple majority threshold for a trade union to get recognition from an employer, and which they alleged was not a proportionate or reasonable limitation within the context of article 24 of the Constitution. The ELRC, when dismissing the said petition, held that the purpose of the majority requirement was to reduce the risk of proliferation of trade unions and enhance industrial harmony and peace. 16. We are in agreement with this finding, and hold that the rationale for the requirement of being sufficiently representative in section 14(1)(d)(i) of the Labour Relations Act is similar, and that the limitation meets the proportionality and reasonableness test envisaged by Article 24 of the Constitution. This limitation is proportionate as it considers both the nature and composition of the workplace, and reasonable to the extent that it also ensures organised collective bargaining by not overburdening the employer with administrative and financial obligations. 17. This position was confirmed by the Supreme Court of Kenya in Kenya Plantation & Agricultural Workers’ Union vs Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU) Represented by its Promoters) (Petition 4 of 2018) [2020] KESC 59 (KLR), which affirmed and upheld the decision of this Court in Kenya Plantation & Agricultural Workers Union vs David Benedict Omulama & 9 Others (supra) that the rights to form and join trade unions and associations are not absolute and are limited by Article 24 of the Constitution of Kenya 2010, and that the condition imposed by Section 14(1)(d)(i) of the Labour Relations Act was not an unconstitutional limitation of the right to form and join a trade union. The Supreme Court held as follows: “ 34. We have carefully perused the provisions of Sections 12, 13 and 14 of the Employment and Labour Relations Act and other relevant statutory and Constitutional provisions in respect to the issue in question. It is clear in our mind that once an application for registration of a trade union has been made and the same is compliant with the aforesaid Sections and the Constitution, the Registrar of Trade Unions has no choice but to register the same. The only reason for refusal of registration is where there is another trade union https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 6

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sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration as provided under Section 14 (1) (d)of the same Act.” 18. The second limb is whether the finding that there was another trade union that was sufficiently representative of the segment sought to be represented by the Appellants’ proposed trade union was justified in the circumstances of this appeal. It must be noted, in this regard, that the requirement of sufficient representation is different from majority representation, and that the relevant considerations in sufficient representation go beyond the number of employees represented, and includes the nature and scope of the interests represented by the trade union. 19. Therefore, no definite number or percentage can be set in determining the threshold for sufficient representation. It was in this regard explained in an article on "Trade Union Rights: Key Issues based on Decisions of the ILO Committee on Freedom of Association" published in International Union Rights, Vol. 16 No. 3, 2009 that the granting of exclusive rights to the most representative organisation should not mean that the existence of other unions is prohibited. It is therefore acceptable for legislation to establish a percentage in order to determine the threshold for the representativeness of organisations, and to grant certain privileges to the most representative organisations, in particular for collective bargaining purposes. However, that such criteria must be objective, precise and pre-established, in order to avoid any possibility of bias or abuse. 20. It is notable in this regard that the Labour Relations Act does not provide a concise definition of the term “sufficient” representation. Therefore, the determination is essentially made on a case-to-case basis, and the factors that should be taken into account in this regard to determine whether a trade union is sufficiently representative include the nature of the sector in which the union operates, its organisational history, and the composition of the workplace. Reference is in this regard made to the article by MA Chicktay on Democracy, Minority Unions And The Right To Strike: A Critical Analysis Numsa v Bader Bop (Pty) Ltd 2003 2 BCLR (CC) published in Obiter-Nelson Mandela University Law Journal Vol. 28 No. 1 (2007) pp. 159-165. 21. The said author notes as follows with respect to the South African Labour Relations Act: “ The phrase “sufficiently representative” is not defined in the LRA. The LRA does, however, give guidance on issues that the arbitrator must consider when determining whether a trade union is sufficiently representative. The arbitrator must consider the nature of the workplace, the nature of the organisational rights that the union seeks to exercise the nature of the sector where the workplace is situated and the organisational history at the workplace (s 21(8)(b) of the LRA). The arbitrator will also seek to minimise the proliferation of trade union representation in a workplace and to encourage a system of representative trade unions. It will also seek to minimise the financial and administrative burden placed on the employer in providing these rights (s21(8)(a) of the LRA). Therefore, there is no minimum threshold. What amounts to sufficient representation will be determined on a case by case basis.” 22. In the present appeal, the reasons for refusal to register the Appellants’ proposed trade union as stated by the Respondent in the Form D dated 30th October 2017 were as follows:The intended sector of coverage being all aircraft maintenance personnel including aircraft maintenance technicians, technical assistance and licensed aircraft maintenance engineers are already represented by the existing trade unions in the aviation sector. These are the Kenya Aviation Workers Union, KAWU and Aviation and Airport Services Workers Union (AASWU).According to its constitution. KAWU represents any https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 7

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working person in the aviation industry. AASWU on the other hand represents any workman in the aviation and allied industries.Workers in the aviation sector are therefore sufficiently represented by the two unions and your intended sector of coverage aforesaid is a segment of the wider aviation sector.” 23. The Respondent concluded after citing section 14(1)(d)(i) of the Labour Relations Act, that it was the Board’s view and its view that the aircraft maintenance personnel are sufficiently represented by the said registered trade unions. A perusal of the alleged resignations by some of the Appellants from being members of KAWU showed that they bear various dates in November 2017, after the refusal of KAMPU’s registration. In addition, the Appellants did not specify in what manner KAWU and ASSWU were not able to represent their interests, nor provide any evidence of any such refusal to represent their interests. More importantly, this appeal is distinguishable from the appeal in Kenya Plantation & Agricultural Workers’ Union vs Omulama & 9 Others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU) represented by its Promoters) with respect to sector coverage. 24. In Kenya Plantation & Agricultural Workers’ Union vs Omulama & 9 others (The Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFHAU) represented by its Promoters), the 1st to 9th Respondents’ case that their proposed union was established to represent members drawn from Export, Floriculture and Allied Sectors covering specific areas set out in their constitution that were not represented by the existing trade unions. The finding by the Registrar therein that a substantial proportion of the interests in respect of which the applicants sought registration was covered by the Kenya Plantation and Agricultural Workers Union, which represented the interests of workers in the coffee, tea, sisal and general agriculture industries was set aside. The ELRC, Court of Appeal and Supreme Court in this respect found that there was a fundamental difference between the plantation and agricultural industries represented by the Kenya Plantation and Agricultural Workers Union, and the floriculture and horticulture industries represented by the 1st to 9th Respondents therein. 25. In the present appeal, the Appellants are all employees in the aviation industry, which is not comparable in coverage or diversity to the agriculture sector, and which is already a sub-sector of the transport industry with an existing registered trade union, namely KAWU, that represents the workers in the subsector. These factors still obtain despite the judgment of this Court in Kenya Aviation Workers Union vs Registrar of Trade Unions & Another (Civil Appeal 23 of 2017) [2023) KECA 183 (KLR) delivered on 17ᵗʰ February 2023, where it was noted and found that AASWU had been dissolved as follows: 26. 4. "We have carefully considered this appeal. The documents availed to the Court indicate that on June 29, 2019 the 2nd respondent (AASWU) held a special delegates conference at Cabanas Hotel, Nairobi, and passed a resolution to dissolve itself as a trade union. That dissolution was confirmed by the Registrar of Trade Unions vide a letter dated July 8, 2019. We have also seen a Notice of Dissolution (Form P) duly signed by the Registrar of Trade Unions on July 8, 2019 certifying that the dissolution of the 2nd respondent is duly registered pursuant to section 29 of the Labour Relations Act. 5. In view of the dissolution of the 2nd respondent and the fact that the 1st respondent does not oppose the appeal because there is no other registered trade union in the aviation industry or sector, we allow this appeal and direct each party to bear its own costs “ While KAWU is presently the only registered trade union in the aviation industry, we are of the view that it sufficiently represents the Appellants’ interests for the reasons we have given hereinabove. We https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 8

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therefore do not find any reason to fault the Respondent’s reasons for refusing registration of the Appellants’ proposed trade union. 27. The third limb we need to answer is whether the Appellants were denied the opportunity to be heard. The application process under the Labour Relations Act for registration of a trade union is a twostage process. Applicants are first required to obtain a certificate from the Respondent which specifies that the promoters of the proposed trade union may undertake lawful activities in order to establish a trade union; and allows them to make an application for the registration of the trade union to the Respondent within six months of the date of issue of the certificate. Section 12(2) provides that, an application for the certificate shall be signed by two promoters, specify the name of the proposed trade union and contain any other prescribed information. The second stage is the application for registration which is required to be made within six months of the issue of the certificate under section 13 of the Act. Section 18 provides the procedure for application for registration, which is made in the prescribed form with various documents being provided by applicants including their constitution and resolutions to form the trade union. 28. Under section 19, if the Respondent is satisfied, after consulting the Board, that a trade union that has applied for registration meets the requirements of the Act, the Registrar shall register that trade union. On the other hand, under section 20, if the Respondent is not satisfied that a trade union meets the requirements for registration and refuses the application for registration, the Respondent shall advise the trade union of the reasons for that refusal in Form D set out in the Second Schedule. We are at pains to appreciate the Appellants’ arguments that they were not afforded an opportunity to be heard in light of the above statutory procedural requirements and mechanisms for provisions of information by applicants for consideration by the Respondent. It is pertinent in this respect that section 14 of the Act contains the necessary information required to be provided by applicants to demonstrate that they have met the requirements for registration as a trade union, including demonstrating that the existing trade unions are not sufficiently representative of a substantial proportion of their membership. 29. In conclusion, and having evaluated the whole matter comprehensively, we find that this appeal has no merit, and dismiss it with no order as to costs, arising from the fact that the Respondent did not participate in the appeal. 30. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF SEPTEMBER, 2024 M. WARSAME .............................. JUDGE OF APPEAL S. OLE KANTAI ............................... JUDGE OF APPEAL P. NYAMWEYA ................................ JUDGE OF APPEAL I certify that this is a true copy of the original Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 9

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DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1188/eng@2024-09-20 10

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