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

the intended Federation of Kenya Workers Congress (FKWC). In accordance to the mandatory provisions of the Labour Relations Act. ii. 2. That the parties to bear their costs. The Application is based on the facts in the Statutory Statement dated 16th March 2026 and the Verifying Affidavit based on the grounds that: following the 2nd Respondent’s refusal to have the Applicant affiliated to its entity, the Applicants applied for the registration of the Federation, The Federation of Kenya Workers Congress (FKWC) accordance with the law; subsequently, the 1 st Respondent proceeded to notify the public of the intended registration through a Gazette Notice Number 13761 issued on the 17th December 2023, eliciting no objections from the public; upon the expiry of the 21 day period, the 1 st Respondent, had a constitutional responsibility and obligation to have the applicant’s be issued with a Certificate of Registration for the Workers Federation; that the same has never been done, on justification that it as "work in progress" at the Labour Board; that the same necessitated this proceeding to compel the 1st Respondent to act. 3. The 1st Respondent opposed the motion vide her Replying Affidavit sworn on 16th June 2026. She termed the application as being misconceived, incompetent and an abuse of the court process. She deposed that the Applicant has failed to establish the legal threshold for the grant of an order of mandamus. She added that an order of mandamus could issue to compel the Registrar of Trade Unions to perform an act that has not become as a matter of statutory ELRC NAIROBI -JR E028 OF 2026 JUD 2

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obligation. She outlined that the powers of the Registrar of Trade Unions in the registration of Federations of Trade Unions are statutory and must be exercised strictly in accordance with the provisions of the Labour Relations Act, 2007 (the Act). That the Court could not compel the Registrar of trade unions to act contrary to the law or to dispense with statutory requirements. 4. The Registrar of Trade Unions deposed that the issuance of a certificate of registration was not a mere ministerial act but contingent upon the Applicant satisfying all the statutory prerequisites prescribed under the Act and the regulations made thereunder. She stated that the Applicant had not demonstrated that it submitted a complete and compliant application for registration or that all conditions precedent to registration of the proposed federation had been fulfilled. She added the Applicant had not demonstrated that the Registrar had unlawfully refused, neglected or failed to perform any statutory duty more so, since the registrar is awaiting the National Labour Board advice 5. She deponed that the application was premature as the statutory process relating to consideration of the application for registration had not been exhausted and/or had not crystallized into a legal duty capable of enforcement by an order of mandamus. She stated that the Applicant has failed to exhaust the remedies and procedures provided under the Act before invoking the supervisory jurisdiction of this Honourable Court. She argued that the orders sought would unlawfully fetter the statutory discretion vested in the Registrar of ELRC NAIROBI -JR E028 OF 2026 JUD 3

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Trade Unions and would effectively require the Court to substitute the Registrar's statutory mandate with its own determination. 6. She urged that judicial review remedies are concerned with the legality of the decision-making process and not with compelling the conferment of registration where the statutory conditions had not been satisfied. She stated that the Applicant had failed to demonstrate any violation of the Constitution, the Act or the rules of natural justice to warrant intervention of this Honourable Court. She urged that granting the orders sought would undermine the statutory scheme governing the registration of trade unions and federations and would set a precedent permitting registration by judicial fiat rather than in accordance with the law. She urged that the Notice of Motion lacked merit and ought to be dismissed with costs to the Respondent. Submissions 7. The Applicants submitted that the Court had jurisdiction to hear and determine the Application. on the argument that no evidence has been produced, it was submitted that the issue before the Court was not on documentation but the procedure to be followed by the 1 st Respondent in the registration of the applicant’s federation. It was argued that there was no legal requirement for the Labour Board to authorize the registration of a federation. It was contended that the 1st Respondent was mandate to register where there is no objection received. The refusal was violation of the Applicants’ rights of freedom of association. Counsel submitted that the only objection received was received two months after the expiry of the objection ELRC NAIROBI -JR E028 OF 2026 JUD 4

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period; and which the Applicants responded. It was urged that the Application is merited and ought to be allowed. 8. The issue that arises is whether the circumstances of this case merit an order of Mandamus. 9. The requirements for an Application for an order of Mandamus to pass muster were outlined in Republic v Principal Secretary, Ministry of Internal Security & another Ex-Parte Schon Noorani & another (2018) KEHC 9433 (KLR) as follows: 29. Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General),[23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).[24] The eight factors that must be present for the writ to issue are:(i) There must be a public legal duty to act; (ii) The duty must be owed to the Applicants; (iii) There must be a clear right to the performance of that duty, meaning that: a. The Applicants have satisfied all conditions precedent; and b. There must have been: I. A prior demand for performance; II. A reasonable time to comply with the demand, unless there was outright refusal; and III. An express refusal, or an implied refusal through unreasonable delay; ELRC NAIROBI -JR E028 OF 2026 JUD 5

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(iv) No other adequate remedy is available to the Applicants; (v) The Order sought must be of some practical value or effect; (vi) There is no equitable bar to the relief sought; (vii) On a balance of convenience, mandamus should lie 10. Under Section 16 of the Labour Relations Act the requirements for registration of a federation as follows: 16. Requirements for registering federation of trade unions The requirements for registration as federation of trade unions are— (a) the federation has applied for registration in accordance with this Act; (b) the federation has adopted a constitution that complies with the requirements of this Act; (c) the federation has an office and postal address in Kenya; (d) the constitution of the federation specifies that its members are registered trade unions only; (e) the federation was established at a meeting attended by the representatives of at least three registered trade unions with the mandate of their respective executive boards; (f) the name of the federation is not the same as one of an existing trade union or federation or sufficiently similar so as to mislead or cause confusion; and ELRC NAIROBI -JR E028 OF 2026 JUD 6

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(g) the federation is independent from the control, either, directly or indirectly, of any employers’ organisation or federation of employers. 11. Section 19 of the Act, which provides for the Registration of the Federation, creates the requirement of consulting the Board as follows: 19. Registration of trade unions, employers’ organisation or federation (1) If the Registrar is satisfied, after consulting the Board, that a trade union, employers’ organisation or federation that has applied for registration meets the requirements of the Act, the Registrar shall register that trade union, employers organisation or federation and shall— (a) issue a certificate of registration in Form B set out in the Second Schedule; and (b) enter the name and details of the trade union, employers’ organisation or federation in the appropriate register in Form C set out in the Second Schedule. (2) A certificate of registration issued under subsection (1) is conclusive evidence that the trade union, employers’ organisation or federation has been duly registered under this Act unless it is proved that the certificate has been withdrawn or cancelled. 12. In response to the Application, the then Registrar E. N. Gicheha vide her letter dated 2nd February 2022, informed the Applicants that: ELRC NAIROBI -JR E028 OF 2026 JUD 7

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“The above matter and your letter dated 2nd February, 2022 refer. I wish to inform you that the application will be placed before the National Labour Board (NLB) for advise and consultation in accordance with the provisions of the law, when the Board meets next.” 13. I note that the above response was in February 2022 and this Application was proffered in March 2026. Four years have lapsed since and no action had been communicated. It is surprising for the 1st Respondent to urge this Court that she was awaiting the Board’s advice. What is more puzzling is that despite alleging that the Applicants had not met the requirements for the registration of the federation, the Registrar had not provided any evidence of communication of refusal on account of failure to fulfill any requirements. The requirement for a written refusal is provided for under section 20 of the Act as follows: 20. Refusal to register a trade union, employers’ organisation or federation If the Registrar is not satisfied that a trade union, employers’ organisation or federation meets the requirements for registration and refuses the application for registration, the Registrar shall advise the trade union, employers’ organisation or federation of the reasons for that refusal in Form D set out in the Second Schedule. ELRC NAIROBI -JR E028 OF 2026 JUD 8

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14. 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. This position is fortified by the finding of the Court in Republic v Registrar of Trade Unions & 2 Others Exparte William Ochieng Ogolla & 2 Others [2012] KEHC 2922 (KLR) as follows: “Even without belabouring the point any further, I wish to state that I do not find any substance in the 1 st Respondents explanation for failure to act on the Applicants’ application because even though he was required to consult the Board on issues regarding registration of federation of trade unions, the decision whether or not to register a trade union or a federation rested on him and not on the Board. The law only required him to consult the Board but he had the legal duty and obligation to act on all applications for registration of trade unions, employers organizations or federation of trade unions and after due consideration make a final decision one way or the other. The 1st Respondent cannot be allowed to abdicate his responsibility under the Act by hiding behind the statutory requirement for consultation. A reading of the Act does not give any indication that the Boards advice on matters of registration was meant to be binding on the 1st Respondent. Be that as it may, even if the court was to accept even for a moment the Registrar’s contention that he had been waiting ELRC NAIROBI -JR E028 OF 2026 JUD 9

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to receive the Board’s advice on the matter, the 1 st Respondent has not tendered any evidence to show that he had made any attempts to consult the Board from January 2011 to the date these proceedings were instituted in August 2011. It was the 1st Respondents duty and obligation to seek consultations with the Board either as soon as receiving the application for registration or within a reasonable time. I find it ludicrous that the 1st Respondent would fail to take any steps to deal with the application or to consult the Board for seven months and then when confronted with his failure to act turns around to say that he was waiting for advice from the Board. How was the Board supposed to render advise on a matter that had not been placed before it? This is a question that the 1st Respondent did not apparently address his mind to and is another manifestation of his failure to perform his public duties under the Act. In my view, the delay of 7 months to act on the application for registration of the federation (PUSETU – K) was inordinate, unreasonable and unjustifiable. In my opinion, it amounted to a refusal to act on the application which in turn translated to failure by the 1st Respondent to perform a public duty expressly imposed upon him by the Labour Relations Act. This failure by the 1 st Respondent adversely affected the rights of the Applicants who are members of trade unions who constituted themselves as PUSETU-K and who desired to be registered as a confederation under the Act in order to attain legal recognition. They had a right under Article 41 of ELRC NAIROBI -JR E028 OF 2026 JUD 10

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the Constitution of Kenya 2010 and Section 4 of the Act to form or join a federation of trade unions. It is my finding that the 1st Respondent violated the Applicants legitimate expectations that he will follow the law and act on their application making a decision on it whether or not to register their federation within a reasonable time which he failed to do despite reminders by the Applicants…” 15. On the reliefs sought, the court is in agreement with the 1 st Respondent that this Court cannot usurp the functions of the Registrar of Trade Unions by ordering the registration of the Federation. Similarly, having found that the delay to act infringes the Applicants’ rights, 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. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 28TH SEPTEMBER, 2026 DR. JACOB GAKERI JUDGE ORDER ELRC NAIROBI -JR E028 OF 2026 JUD 11

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In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15 th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE ELRC NAIROBI -JR E028 OF 2026 JUD 12

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