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ELRCOtherAppeal (Nairobi) – instituted 25 March 2020 (number not stated in judgment)· [2021] KEELRC 2187 (KLR)

Hesbon Lumumba M’Mbolo & 5 others v Registrar of Trade Unions; Kenya National Private Security Workers Union & another (Interested Parties) [2021] KEELRC 2187 (KLR)

Employment and Labour Relations Court
10 February 2021
RSRadido Stephen
2,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court paused a trade union registration appeal because the outcome depends on a pending Court of Appeal case about the recruitment certificate.

What this practically means

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Executive summary

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This is a ruling (not the reserved judgment) of the Employment and Labour Relations Court in an appeal by promoters of the proposed Kenya Union of Special & Professional Guards (KUSPROG) against the Registrar of Trade Unions' refusal, communicated in Form D dated 18 February 2020 pursuant to section 20 of the Labour Relations Act, to register the proposed Union on the ground that security guards were already represented by the Kenya National Private Security Workers Union. The antecedent history is that a differently constituted bench, in Appeal No. 9 of 2018, quashed the Registrar's refusal to issue a certificate of recruitment under section 12 and ordered its issuance; that judgment is now the subject of a pending Court of Appeal matter, Civil Appeal No. 154 of 2019, brought by the 1st Interested Party. The 1st Interested Party and COTU, joined as Interested Parties, argued the Appeal was res judicata and sub judice and should be struck out; the Registrar raised infringement of constitutional rights and adequacy of existing representation. The Court held res judicata inapplicable because the section 12 refusal challenged earlier is distinct from the section 20 registration refusal now impugned, though closely interwoven. On sub judice, however, the Court found the outcome of the pending Court of Appeal appeal legally decisive, since the section 12 certificate is a statutory sine qua none for registration, and any judgment now could prove academic. Relying on the Supreme Court's caution in Law Society of Kenya v Attorney General, the Court stayed the Appeal and all proceedings pending the outcome of Civil Appeal No. 154 of 2019, with costs in the cause.

Key legal issues

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01

Res judicata

Holding

Res judicata does not apply because the prior judgment concerned refusal of a certificate of recruitment under section 12 of the Labour Relations Act, whereas the instant Appeal challenges refusal of registration under section 20

Reasoning

The earlier judgment in Appeal No. 9 of 2018 addressed the Registrar's refusal to issue an interim certificate of recruitment under section 12 of the Labour Relations Act. The present Appeal challenges a distinct decision - refusal to register the proposed Union under section 20. Although closely interwoven, the issues are distinct, so the doctrine of res judicata is not attracted.

p. 4
02

Sub judice / stay pending appeal

Holding

The Appeal should be stayed pending the outcome of Civil Appeal No. 154 of 2019 because the outcome of that appeal is legally interwoven with the instant Appeal

Reasoning

The certificate of recruitment under section 12 is a statutory precondition to registration. If the Court of Appeal upholds the 1st Interested Party's appeal against the judgment ordering issuance of that certificate, the foundation of the registration application would dissipate and any judgment here would be academic. Determining the Appeal before the Court of Appeal decides would serve no purpose.

p. 4

Legal principles established

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  • A certificate of recruitment issued under section 12 of the Labour Relations Act is a statutory precondition to the registration of a trade union
  • A court should take judicial notice of pending proceedings whose determination may bind it or affect the dispute before it where there are related issues

Court orders

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  1. 1.THAT this Appeal and the proceedings hitherto be stayed pending the outcome of Civil Appeal No. 154 of 2019, Kenya National Private Security Workers v Hesbon Lumumba & Ors.
  2. 2.Costs in the cause.

Authorities

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Legislation

  • Labour Relations Actsection 12
  • Labour Relations Actsection 20
  • Civil Procedure Actsection 6

Cases cited (3)

  • Law Society of Kenya v Attorney General & Ar
    (2019) eKLR
  • Hesbon Lumumba M'mbolo & Ors v Registrar of Trade Unions (Nairobi Appeal No. 9 of 2018)
  • Kenya National Private Security Workers Union v Hesbon Lumumba & Ors (Nairobi Civil Appeal No. 154 of 2019)
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over the Registrar of Trade Unions' decision under the Labour Relations Act, 2007 (appeal against refusal to register under section 20)

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, "Hesbon Lumumba M’Mbolo & 5 others v Registrar of Trade Unions; Kenya National Private Security Workers Union & another (Interested Parties) [2021] KEELRC 2187 (KLR)", Case Analysis (2021). Appeal (Nairobi) – instituted 25 March 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2187/eng@2021-02-10

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