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ELRCOtherNot stated in judgment

Kenya Union of Employees of Polytechnics Colleges & Allied Institutions v Registrar of Trade Unions [2012] KEELRC 60 (KLR)

Industrial Court of Kenya
14 December 2012
1,033 words in judgment
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The bottom line

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An unregistered trade union cannot sue or appeal in Kenya; only its promoters have legal standing to challenge refusal of registration.

What this practically means

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Executive summary

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The Kenya Union of Employees of Polytechnics, Colleges & Allied Institutions appealed to the Industrial Court against the Registrar of Trade Unions' refusal to register it. The appeal was filed on 10 January 2011 and was heard partly before Justice Chemmutut and concluded before the writer on 25 September 2012 and 23 October 2012, with judgment reserved for 14 December 2012. At hearing, counsel for the appellant disclosed a Notice of Motion dated 23 May 2011 seeking leave to amend the Memorandum of Appeal by substituting the union with its seven promoters, on the ground that the union had not yet acquired legal capacity. The court found no record that this application had been served, argued or determined, and the parties had addressed only the merits. The court held that a trade union acquires juristic personality only upon registration under section 21 of the Labour Relations Act; before registration its rights are inchoate and can only be litigated by its promoters, who are the persons contemplated by section 30 to appeal against refusal of registration. Legal capacity was held to be a substantive issue going to jurisdiction, not a mere procedural technicality notwithstanding Article 159(2)(d) and section 20 of the Industrial Court Act. The court invoked its inherent power, vacated the proceedings of 25 September and 23 October 2012, and directed that the amendment application be determined first, before any other Judge in Nairobi. Judgment on the merits was accordingly not delivered.

Questions the Court framed

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

  1. 1.Whether the Court should deliver judgment when an undetermined Notice of Motion to substitute the Appellant with its promoters is on record
  2. 2.Whether the legal capacity of a party is a procedural technicality or a substantive issue going to jurisdiction and competence of the cause

Key legal issues

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01

Whether an unregistered trade union has capacity to prosecute an appeal under section 30 of the Labour Relations Act

Holding

An unregistered proposed trade union has no legal capacity; only its promoters were aggrieved by refusal of registration and are the persons contemplated to appeal

Reasoning

The court held that registration confers juristic personality under section 21 of the Labour Relations Act. Before registration a proposed union has only inchoate rights. At the time the Registrar refused registration, it was the promoters who were aggrieved, and section 30 contemplates them as the appellants. The union therefore lacked capacity unless the pending amendment application substituting the promoters was granted.

p. 2
02

Whether the court could deliver judgment with an undetermined application to amend the Memorandum of Appeal on record

Holding

No; the application must be determined first, and the proceedings already taken were vacated

Reasoning

The Notice of Motion dated 23 May 2011 seeking to substitute the promoters as appellants had never been served, argued or determined. The parties had only addressed the merits. Delivering judgment would create an apparent error on the face of the record in a superior court obliged to keep a proper record. The court invoked its inherent power to regulate its processes and directed the application be disposed of first.

p. 2

Legal principles established

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  • A trade union acquires legal personality only upon registration; before registration only its promoters can litigate its rights
  • Legal capacity of a party is a substantive issue going to jurisdiction and competence, not a mere procedural technicality

Court orders

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  1. 1.The Notice of Motion application seeking to amend the Memorandum of Appeal be disposed of first before the Appeal is determined on merits
  2. 2.The proceedings taken on 25 September 2012 and 23 October 2012 are vacated
  3. 3.The Notice of Motion seeking to amend the Memorandum of Appeal be determined first before any other Judge in Nairobi

The bench

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

majority

Wrote the judgment

majority
On appeal from
Registrar of Trade Unions
Jurisdiction invoked
Appeal under section 30 of the Labour Relations Act to the Industrial Court

Relief refused

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Delivery of judgment on the merits of the appeal as heard

An undetermined application to substitute the Appellant with its promoters was on record and the Appellant's legal capacity was in doubt

p. 2

Costs

No costs order made

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.

The question which I must grapple with therefore is whether the legal capacity of a party is merely a procedural technicality or it is a substantive issue which goes to jurisdiction and competence of a Cause. In my view it is a substantive issue which must be addressed as it could dispose of the appeal in limine.
p. 2Legal capacity as a jurisdictional, not technical, issue
Before registration, a proposed trade union has no legal rights or interests of its own. Any rights or interests it may have are inchoate rights or interests. The rights and interests can lawfully only be claimed or litigated upon by the proposed promoters.
p. 2Capacity of unregistered trade unions
In the circumstances I do vacate the proceedings taken before me on 25 September 2012 and 23 October 2012 and direct that the Notice of Motion seeking to amend the Memorandum of appeal be determined first before any other Judge in Nairobi.
p. 2Final orders

Issues in the judgment

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minor

The judgment is signed by two judges (Radido and Nzioki wa Makau) but is written in the first person singular by one judge; roles in authorship are not distinguished

minor

Typographical error in the judgment text

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, "Kenya Union of Employees of Polytechnics Colleges & Allied Institutions v Registrar of Trade Unions [2012] KEELRC 60 (KLR)", Case Analysis (2012). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/60/eng@2012-12-14

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