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Court of AppealDismissedCivil Appeal No. 16 of 2017

Benson Ngoma Mtungu & 6 others v Registrar of Trade Unions & another [2018] KECA 620 (KLR)

Court of Appeal
17 May 2018
2,837 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 Court of Appeal confirmed that the Registrar of Trade Unions can refuse to register a new union if existing unions already represent those workers.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Mombasa against the judgment of Makau, J. of the Employment and Labour Relations Court, which had dismissed the appellants' appeal against the Registrar of Trade Unions' refusal to register a proposed union, the Kenya Union of Container Freight Stations and Depots Workers. The Registrar had refused registration after two pre-existing unions in the same sector - the Kenya Union of Export and Import Workers and the Kenya Shipping Clearing and Warehouse Workers Union - objected that the workers the appellants proposed to represent were already substantially represented, which would duplicate unions and create disharmony. The Registrar also consulted the National Labour Board, as permitted by the Labour Relations Act, before issuing a reasoned notification of refusal. The Court of Appeal, as a second appellate forum, confined itself to points of law. It affirmed the decision below, holding that although freedom of association and trade union rights are constitutionally protected under Articles 36(1) and 41(2)(c), the LRA prescribes thresholds for registration, notably section 14(1)(d)(i) barring registration where an existing union sufficiently represents the same interests. The Registrar's decision was discretionary and, once duplication was indicated, the burden lay on the appellants under sections 107 and 108 of the Evidence Act to prove the discretion was wrongly exercised - a burden they failed to discharge. The complaint about the National Labour Board consultation failed as it was a statutory requirement, unparticularised, and raised for the first time on appeal. The appeal was dismissed with no order as to costs, each party bearing its own costs, the court being mindful of the appellants' good faith.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge of the ELRC erred in upholding the Registrar of Trade Unions' refusal to register the proposed trade union on the ground that the workers sought to be represented were already sufficiently represented by existing registered trade unions
  2. 2.Whether the Registrar lawfully consulted the National Labour Board before declining registration
  3. 3.Whether section 14(1)(d)(i) of the Labour Relations Act improperly overrides Articles 36 and 41(2)(c) of the Constitution, and whether the constitutional limitation analysis under Article 24 was correctly applied
  4. 4.What remedy, if any, avails to the appellants

Key legal issues

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01

Whether the Registrar's refusal to register the proposed union for duplication with existing unions was lawful

Holding

It was lawful: objections by KUEIW and the Kenya Shipping Clearing and Warehouse Workers Union that the workers were already represented were merited, and the appellants did not prove the discretion was wrongly exercised.

Reasoning

The court held that although the right to form a trade union is constitutionally protected under Articles 36(1) and 41(2)(c), the LRA prescribes a procedure and substantive thresholds for registration. Section 14(1)(d)(i) bars registration where an existing union is sufficiently representative of the same interests. Objections from two unions covering the same sector were raised, the Registrar consulted the National Labour Board as permitted by section 19, and gave reasons under section 20. The appellants, bearing the evidential burden, failed to establish that duplication was unlikely or the discretion miscarried.

p. 4
02

Whether the Registrar's consultation of the National Labour Board was improper

Holding

The consultation was a statutory requirement properly undertaken, and the ELRC Judge did not err in upholding it.

Reasoning

The appellants argued the Board was not given all salient facts and that they were not involved in the consultation. The court found that the appellants did not identify which facts were withheld nor any legal requirement that they participate in the consultation, and the argument was raised for the first time on second appeal, which the court declined to entertain.

p. 4
03

Whether section 14 of the LRA improperly overrides Articles 36 and 41(2)(c) of the Constitution

Holding

No: the statutory limitation on registration is a legitimate condition on the exercise of the constitutional rights, and the Judge cannot be faulted for deciding the appeal on the statutory provisions.

Reasoning

The court acknowledged the constitutional guarantee of freedom of association and trade union rights but held that the law lays down a procedure to be met by those seeking registration, primarily under the LRA. Since the appellants failed to discharge their evidential burden on the representation issue, they could not fault the Judge for deciding strictly on the statutory provisions.

p. 4

Legal principles established

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  • Section 14(1)(d)(i) of the Labour Relations Act conditions the right to register a trade union on there being no other registered union sufficiently representative of the interests in respect of which registration is sought; the Registrar's decision on such requirements is a discretionary one, and the applicant bears the burden of proving it was wrongly exercised.
  • In a second appeal, only points of law fall for determination; factual issues must have been fully canvassed in the forums below.
  • The burden of proof lies on the party who alleges, per sections 107 and 108 of the Evidence Act.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear its own costs

The bench

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

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
On appeal from
Employment and Labour Relations Court at Mombasa
Mombasa E.L.R.C Cause No. 3 of 2016
Jurisdiction invoked
Section 30 of the Labour Relations Act, 2007 (appeal against a decision of the Registrar of Trade Unions), the matter reaching the Court of Appeal as a second appeal on points of law

Relief refused

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Registration of the proposed trade union and setting aside the Registrar's refusal

The appellants failed to discharge the burden of proving that the Registrar's discretion was wrongly exercised or that duplication with existing unions would not occur, and the consultation with the National Labour Board was a statutory requirement properly undertaken

p. 4

Costs

Each party to bear its own costs. We are reluctant to award costs while noting the appellants are ingenious Kenyans who were perhaps (although mistaken) driven by good faith to form a trade union to give a voice to workers and at the same time find employment for themselves through creation of offices and revenue to be collected from the workers to pay themselves. In this regard we order each party to bear its 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.

In view of the foregoing, we find this appeal lacking in merit and the same is hereby dismissed.
p. 4Disposition - dismissal of the appeal
In this regard we order each party to bear its own costs.
p. 4Final costs order
the decision as to whether or not to register the trade union is left to the discretion of the Registrar, subject however, to an applicant’s satisfaction of the requirements set by section 14 of the Act.
p. 4Registrar's discretion and statutory requirements for trade union registration
under sections 107 and 108 of the Evidence Act, the burden is upon he who makes the allegation to prove it.
p. 4Burden of proof on the applicant challenging the Registrar's decision
This is a second appeal, and that being so, only points of law fall for our determination
p. 1Scope of a second appeal

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, "Benson Ngoma Mtungu & 6 others v Registrar of Trade Unions & another [2018] KECA 620 (KLR)", Case Analysis (2018). Civil Appeal No. 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/620/eng@2018-05-17

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