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ELRCDismissedCause No. E210 of 2021

Kenya Petroleum Oil Workers Union & another v Registrar of Trade Union [2021] KEELRC 1470 (KLR)

Employment and Labour Relations Court
6 May 2021
5,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a challenge to union elections, ruling grievances against the Registrar of Trade Unions must go through a 30-day statutory appeal.

What this practically means

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Executive summary

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The Kenya Petroleum Oil Workers Union and its national general secretary, Raphael Olala, sued the Registrar of Trade Unions seeking orders compelling fresh national and Nairobi branch elections, a declaration that the branch elections of 20th February 2021 and the aborted national elections of 6th March 2021 were a nullity, and restraint of the respondent from effecting changes to the union register. The claimants alleged that the respondent's returning officer barred organising secretaries from voting, admitted non-delegates and strangers into the voting hall, omitted an attendance register, and presided over violence that aborted the national election; they further alleged the Nairobi branch register was bloated to seven delegates contrary to the union constitution. The respondent, relying on the replying affidavit of E. N. Gicheha, maintained that official returns and Form Q were filed by the presiding officer, that objections were received and answered, and that the claimants failed to exhaust statutory remedies, notably appeals under section 30 of the Labour Relations Act. The court framed four issues and dismissed the claim. It found no sufficient cause for fresh national elections: the returning officer's returns stood, the 2nd claimant's agent signed against the results, and the alleged violence was never reported to the police. The Registrar's unchallenged 3rd March 2021 decision on voter eligibility could only be questioned by appeal under section 30. The Nairobi branch claim failed because the branch is a distinct registered entity under section 25 and was not a party. Each party was ordered to bear its own costs, and the respondent directed to register the changes arising from the 6th March 2021 elections.

Questions the Court framed

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

  1. 1.Whether the 1st claimant should conduct fresh national elections
  2. 2.Whether the respondent should be restrained from making any changes to the 1st claimant register following national elections held on 6th March, 2021
  3. 3.Whether the Nairobi branch elections held on 20th February, 2021 should be conducted afresh and the respondent compelled to deregister changes thereof
  4. 4.Who should pay costs

Key legal issues

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01

Credibility of the national elections of 6th March, 2021

Holding

The elections were properly conducted; the official returns by the allocated returning officer and the signed Form Q stand, and the respondent as regulator found no justifiable cause to refuse registration

Reasoning

The returning officer appointed by the respondent filed official returns and a report refuting allegations of violence and non-delegates. The 2nd claimant's agent signed against the results. The County Labour Officer who alleged chaos was not the presiding officer and had no official role. Alleged violence was never reported to the police. Where the 2nd claimant lost, loss alone does not render the election incredible.

p. 6
02

Eligibility of organising secretaries and director of organization to vote

Holding

The respondent issued a decision on 3rd March, 2021 that organising secretaries appointed as full-time employees are not eligible to vote at the ADC; that unchallenged decision stands and can only be addressed by an appeal under section 30

Reasoning

The claimants raised eligibility with the respondent before the elections and the respondent issued an advisory, decision and directions. No appeal was lodged under section 30 of the Act. The court cannot circumvent the Registrar's decision after the elections, where the 2nd claimant lost, and delve into the question prematurely.

p. 7
03

Competence of the claim regarding the Nairobi branch elections

Holding

The claim fails because the Nairobi branch is a separately registered entity under section 25 of the Act and is not a party; its grievance lies under section 30

Reasoning

The branch was registered on 5th March, 2021 and stands as its own entity with its own secretary and officials, who are not enjoined. The 2nd claimant cannot litigate on its behalf, and the dispute as framed is premature.

p. 7

Legal principles established

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  • A decision of the Registrar of Trade Unions on voter eligibility under the Act can only be challenged by appeal to the Industrial Court within thirty days under section 30 of the Labour Relations Act
  • Violence alleged to have disrupted a trade union election must be reported to the relevant authorities; an unreported allegation of violence carries no weight
  • A candidate's election agent who signs against election results binds the candidate and the results cannot be faulted for the candidate's absence

Court orders

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  1. 1.The claim is found without merit and dismissed
  2. 2.The respondent shall proceed and register changes made to the 1st claimant pursuant to elections held on 6th March, 2021
  3. 3.Each party to pay own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act, 2007 (including section 30 appeals against decisions of the Registrar)

Relief refused

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Order compelling fresh national elections under the union constitution and Labour Relations laws

No sufficient cause was shown; the respondent's decision on voter eligibility stands and objections were not pursued by appeal under section 30 of the Act

p. 7

Permanent order restraining the respondent from making changes to the 1st claimant register

The court found no matter to order non-registration; the 2nd claimant's agent signed against the results

p. 6

Declaration that the Nairobi branch elections of 20th February, 2021 were a nullity and order for fresh branch elections and deregistration of changes

The Nairobi branch is a distinct registered entity under section 25 of the Act and is not a party to the suit; the proper recourse is an appeal under section 30

p. 7

Costs

Each party should pay 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.

Accordingly, the claim herein is found without merit and dismissed. The respondent shall proceed and register changes made to the 1st claimant pursuant to elections held on 6th March, 2021.
p. 8Final orders - dismissal and registration of election changes
In this regard, each party should pay own costs.
p. 8Costs
On the evidence before court, there is no sufficient cause to justify a fresh election of the 1 st claimant.
p. 7No justification for fresh elections
To delve into such question of the respondent's advisory to the 1 st claimant; this being the office legally mandated under the Act to regulate and supervise trade unions would be premature and go contrary to the rule of law.
p. 7Prematurity of challenging the Registrar's decision otherwise than by appeal
This officer was not the presiding officer over these elections. He happened to be a passerby.
p. 6Weight of the County Labour Officer's observer report
Where the 2 nd claimant lost in the elections, such should not be the sole cause that the elections were not credible.
p. 6Election challenges by losing candidates

Issues in the judgment

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minor

The claimant's submissions refer inconsistently to the same authority as 'Philip Mutua Misi' and 'Philip Mutua Nisi'

minor

The circular quoted in the judgment states branch elections should be held from 4th January to '31st march' while the narrative earlier describes the window as '31st June, 2021'

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 Petroleum Oil Workers Union & another v Registrar of Trade Union [2021] KEELRC 1470 (KLR)", Case Analysis (2021). Cause No. E210 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1470/eng@2021-05-06

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