James Muigai Cattleman & another v Registrar of Trade Unions & Kenya Union of Commercial Food and Allied Workers (Interested Party)

directly identifies the professional group the union intends to represent. 4) The refusal to grant a certificate to promote the union constitutes an unreasonable restriction on the appellants’ and their members’ constitutional right to freedom of association and the right to form and join a trade union of their choice under Article 41 of the Constitution. 5) The respondent erred in fact in finding that there was sufficient representation without conducting a thorough investigation into the specific job description and industrial grievances of meat inspectors compared to those of the existing union's membership. For these reasons, the appellant seeks that the appeal be allowed and that KUMI be registered as a trade union. In reply, the respondent filed the Replying Affidavit of Anne K. Kanake, the acting Registrar of Trade Unions, and averred that the appeal herein was filed out of time on 20 January 2026 under section 30 of the Labour Relations Act (the LRA). The decision refusing registration of the proposed trade union was lawfully made on 28 November 2025. An appeal should have been filed within 30 days of that date. The appeal was filed on 20 January 2026, out of time. The appellants have not provided any explanation or sought leave to extend time to file the appeal out of time. The appeal is thus incompetent, improperly before the court and ought to be struck out. Ms Kanake avers that the respondent’s decision was made in compliance with the provisions of the LRA section 14(1) (d) that provides that a trade union shall not be registered if there already exists another trade union that is sufficiently representative of the whole or part or a substantial proportion of the interests in respect of which the applicant seeks registration. ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 2

page 2 of 10

The interests which the appellants seek to represent, the meat inspectors, are already sufficiently represented by existing registered trade unions. The KEHPHPU has a broad membership scope that includes environmental health and public health officers and practitioners who are generally meat inspectors. Additionally, KUCFAW's constitution allows membership of employees engaged in food processing, slaughterhouses, and butcheries. The existence of the said union demonstrates that the category of workers the appellant seeks to represent is already sufficiently represented. The intended registration of the appellant's union will result in unnecessary duplication, fragmentation and weakening of the trade union movement contrary to the objectives of the LRA. The refusal to register the proposed union was therefore lawful, reasonable and justified under the law. Ms Kanake avers that the appeal lacks merit and should be dismissed with costs. After the interested party was joined, no response was filed to the appeal. On appeal, the appellant submitted that, through a letter dated 28 November 2025, the respondent refused to issue KUMI a certificate to promote the establishment of a trade union. The refusal to register the appellants’ proposed union was based on the ground that KUCFAW and KEHPHPU sufficiently cover their interests, which is not the case, since they have distinct and separate mandates. Under section 14(1)(d) of the LRA, a registration may be allowed where there are no competing interests. The interested party has opposed the registration of the proposed trade union on the basis that it will cause industrial chaos. However, it has not sought out the KUMI members for its membership. The CBA in place does not incorporate met inspectors; hence, no sufficient representation would arise. The appellants submitted that the appeal is filed within time. The respondent's decision was issued on 28 November 2025, and the appeal ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 3

page 3 of 10

was filed on 20 January 2026. Taking into account the court recess calendar, the appeal was filed within time, and the objections on time limitations have no merit. The objections on time limitations are on mere technicalities that can be cured under Article 159 of the Constitution. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR, the court held that procedural rules and timelines are important but should not be weaponised as draconian technicalities to shut the door of justice. The appellants submitted that section 14(1) (d) of the LRA allows registration of a trade union where its interests are not a duplication of existing union(s). The appellants’ proposed union has a distinct and separate mandate from that of KUCFAW and KEHPHPU. In the Replying Affidavit seeking joinder dated 18 June 2026, the interested party conceded that meat inspectors perform highly specialised duties to ensure food safety and adherence to strict hygiene and humane handling standards. Indeed, the interested party admitted that meat inspectors form a small department within the union, the majority of whom are trained in veterinary and public health disciplines. The appellants submitted that a general commercial union, ignored within these broad industrial unions under a food processing union or a broad environmental health union such as KUCFAW and KEHPHPU, respectively, cannot sufficiently represent a distinct, technical and specialised veterinary cadre now sought to be addressed under KUMI. The unique industrial grievances, professional hazards and training standards of meat inspectors are submerged and ignored within these broad industrial unions under KUCFAW and KEHPHPU. The respondent’s refusal to register the appellants’ proposed trade union violates the Constitution. The right to association and fair labour practices, which includes the right to form and join a trade union of choice, is part of the Bill of Rights. No justification exists for restricting these rights. The ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 4

page 4 of 10

appeal should be allowed, the respondent's decision set aside, and the court should direct and allow the registration of KUMI as a trade union. The respondent submitted that the refusal to register the appellants' proposed trade union was lawful and justified. The basis is that there are other unions that can accommodate and address the objectives of KUMI in KUCFAW and KEHPHPU, since the appellant’s proposed trade union has no distinct or separate mandate or objectives. The respondent submitted that the appeal is time-barred. Under section 30 of the LRA, an appeal from the respondent's decision should be filed within 30 days of the decision. The decision was issued on 28 November 2025, and the appeal was filed on 20 January 2026. The court has no discretion to extend time for an appeal filed out of time; the time to appeal lapsed on 27 December 2025. In James Opiyo Oundo & 4 others v Registrar of Trade Unions & others [2017] eKLR, the court held that the essence of section 30 of the LRA is that an appeal should be filed within 30 days of the date on which the Registrar of Trade Unions' decision was issued. The provisions are mandatory because the word is “shall,” not “may,” as the appellants allege. In this case, the appellants filed the appeal immediately and within time. The respondent submitted that the refusal to issue the appellants a certificate of recruitment is lawful and justified. KUCFAW's coverage and representation of the interests of the meat inspectors under its constitution are sufficient. This does not defeat the appellants' constitutional rights under Articles 36 and 41 of the Constitution. Equally, KUCFAW and KEHPHPU have broad memberships that specifically address the technical issues the KUMI seeks to address for its members. Section 14(1) (d) of the LRA provides that no trade union can be registered where another trade union exists in the sector. This is meant to avoid duplication. In Charles Salano & 9 others v Registrar of Trade Unions [2017] eKLR, the court upheld the principle that trade union representation should not be duplicative to safeguard industrial harmony. ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 5

page 5 of 10

In refusing the application by the appellants, the respondent addressed section 14(1)(d) of the LRA, which provides that there exists a trade union with a constitution covering met inspectors. The respondent also addressed section 12 of the LRA on the issue of a promotion certificate, and it was found that the appellants did not comply with all the requirements for registration, in Gazemba & another v Registrar of Trade Unions Appeal No. E093 of 2025, the court held that the appellants had no evidence regarding the scope of membership of the proposed trade union they sought to represent. To avoid rivalry with registered trade unions and ensure industrial harmony, the court should allow registration. In Ongera & 2 others v Registrar of Trade Unions & others [2024] KECA 108 (KLR), the court held that the respondent was right to decline registration of a proposed trade union on the basis that existing unions were sufficiently representative of the interests in question. Accordingly, no constitutional rights were violated as alleged, and the appeal should be dismissed with costs. Determination Through an application dated 26 November 2025, the appellants sought a Certificate to promote the establishment of a Trade Union named KUMI. The promoters are the two appellants. The respondent replied to the application by letter dated 28 November 2025 and declined it on two grounds, largely under section 14(1)(d) of the LRA: that other trade unions sufficiently represented the objectives of KUMI. First, KEHPHPU exists, and its constitution makes membership open to all environmental health and public health officers and practitioners. Secondly, KUCFAW, under its constitution, is open to all employees working in the distributive and commercial sectors of the food processing industry, as well as those employed in slaughterhouses and butcheries. ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 6

page 6 of 10

On these grounds, the respondent declined the application; KUCFAW and KEHPHPU were found to represent a substantial proportion of the whole, or part of a substantial proportion, of the interests the appellants sought to register under KUMI. The appellants were found to seek to cover a sector already covered by KUCFAW and KEHPHPU. Additionally, the respondent established that: …The proposed name does not clearly indicate the type of sector or the category of individuals the union intends to represent. The name should explicitly reflect that it represents workers. To support the appeal, the only documents filed include: 1) The Memorandum of Appeal; 2) The application for registration dated 26 November 2025; and 3) The response of the respondent dated 28 November 2025. Of interest is the letter and application dated 26 November 2025 by the appellants to the respondent. It has no attachment. Not the constitution of the proposed KUMI or its objectives. The respondent refers to these documents only in its response dated 28 November 2025. The appellants' letter dated 26 November 2025 clearly shows that they seek to promote the establishment of KUMI. The establishment of a trade union is highly regulated in law. This does not diminish the rights under Articles 36 and 41 of the Constitution. The LRA seeks to elaborate and define the parameters within which the rights under the Constitution can be enjoyed and enforced. Section 12(1) of the LRA does not allow any person to establish a trade union unless such person has obtained a Certificate from the Registrar of Trade Unions. The respondent's role in this case is purely statutory. Other than making an application, an inquiry into the application and applicants must be conducted: ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 7

page 7 of 10

(1)No person shall recruit members for the purpose of establishing a trade union or employers’ organisation unless that person has obtained a certificate from the Registrar issued under this section. Therefore, an applicant(s) must satisfy the provisions of section 12(2) of the LRA: (2)An application for the certificate referred to in subsection (1) shall— (a) be signed by two persons who are promoting the establishment of the trade union or employers’ organisation; (b) specify the name of the proposed trade union or employers’ organisation; and (c) contain any other prescribed information. As noted above, the application dated 26 November 2025 by the appellants to the respondent is bare. It is a single document. No attachment. It is from the advocate's office. Whereas the promoters of the proposed trade union are noted as the two appellants, they have not signed the letter. The role of counsel attending in court on the appellant’s behalf is not similar to the role assigned under the LRA to the promoters under section 12. Indeed, as the respondents noted in their response rejecting the application, a name gives identity. It confers benefits. It offers a definitive objective. A trade union is not just any other business name. It must be anchored under the LRA. Kenya Union of Meat Inspectors (KUMI) is not just about semantics. It has everything to do with, or nothing to do with, the LRA's core requirements. The name must be about a sectoral issue. Under section 2 of the LRA, sector is defined: ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 8

page 8 of 10

“sector” means an industry or service or part of an industry or service; Therefore, under section 14(e) of the LRA, part of the audit the respondent must undertake once the promoters submit an application is to assess which sector is sought to be represented: (e) subject to subsection (2), only members in a sector specified in the constitution qualify for membership of the trade union; The constitution of the proposed trade union is therefore central. It is missing in these proceedings. Section 14(2) of the LRA becomes necessary to cite: (2)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. A proposed trade union must be sector-aligned. To ensure that the sectors covered by KUCFAW and KEHPHPU are not conflated, the appellants must be specific. The respondent has registered some of the trade unions that represent sectoral interests, such as: Transport Workers Union (K), Tailors and Textile Workers Union, Kenya Shoe and Leather Workers Union, Kenya Engineering Workers Union. Just a few. This can give the appellants useful parameters. Without a constitution as the foundational document for the court to audit, the registration application is premature. The rejection for registration is thus lawful. ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 9

page 9 of 10

Therefore, the issue is promoting KUMI. This is not a trade union yet. The promotion to gauge its viability, relevance, acceptance and applicability in the meat inspectors sector has not been tested. If a certificate is issued to promote KUMI, the respondent will require various records. If these are not availed to the registrar to register the full-fledged KUMI, then the registration and the motions of comparative trade unions already addressing similar matters in the sector can be addressed. The sanctity of Article 41 of the Constitution lies in everyone's right to form and join a trade union of their choice. Although Article 24 regulates these rights to secure democratic institutions, including the registration of trade unions under the LRA, the appellants seek a certificate to promote KUMI. Accordingly, the foundation for registration of the appellants’ proposed trade union is premature. The appeal is dismissed. No orders on costs. Delivered in open court this 30th day of September 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… ……… ELRC NAIROBI JUDGMENT APPEAL NO. E033 OF 2026 10 and …………………………………..

page 10 of 10