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ELRCDismissedNot stated in the judgment as reproduced

M’mbolo & 6 others v Registrar of Trade Unions; Kenya National Private Security Workers Union & another (Interested Parties) (Appeal 5 of 2020) [2024] KEELRC 1340 (KLR)

Employment and Labour Relations Court
5 June 2024
974 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to jail the Registrar of Trade Unions for contempt because a proposed union official's criminal conviction legally blocked the union's registration.

What this practically means

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Executive summary

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On 7 February 2024 the Court ordered the Registrar of Trade Unions to register the proposed Kenya Union of Special & Professional Guards within 30 days. When the Registrar did not comply, the promoters (the Appellants) filed a motion dated 12 March 2024 seeking an order that the Acting Registrar, Ms Beatrice Mathenge, attend court to show cause why she should not be committed to twelve months' civil jail and fined not less than Kshs. 1,000,000 for wilful disobedience of the judgment and decree, with personal payment of costs. The Registrar replied that service occurred on 12 February 2024, that a stay application was pending before the Court of Appeal, and that the proposed General Secretary, Jairus Katere Shamala, had been convicted of theft by servant, disqualifying him under section 31(5) of the Labour Relations Act; only 4 of 9 proposed officials had presented certificates of good conduct. The 1st Interested Party, Kenya National Private Security Workers Union, cited its own pending appeal and stay applications at Kisumu. The Court held that the judgment had not directed the Registrar to ignore the statutory registration framework; conviction of a proposed official is a material factor she must consider. Finding no wilful or deliberate disobedience, the Court dismissed the contempt motion with costs on 5 June 2024, admonishing the Appellants to put their house in order before alleging disobedience.

Questions the Court framed

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

  1. 1.Whether the Registrar of Trade Unions wilfully and deliberately disobeyed the Court's judgment and decree of 7/9 February 2024
  2. 2.Whether the Ag. Registrar should be committed to civil jail and fined for contempt

Key legal issues

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01

Whether non-compliance with an order to register a trade union amounted to contempt

Holding

No contempt established; the Registrar had a lawful statutory basis for withholding registration because the proposed General Secretary was disqualified by conviction

Reasoning

Section 31(5) of the Labour Relations Act bars persons convicted of criminal offences from holding trade union office. The proposed General Secretary was convicted of theft by servant in Milimani Criminal Case No. 1410 of 2018 on 17 January 2023. Conviction is a material factor the Registrar must consider, and the prior judgment did not require her to ignore the statutory framework. Hence no wilful disobedience.

p. 3

Legal principles established

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  • A judgment ordering registration of a trade union does not displace the Registrar's statutory duty to consider disqualifying convictions of proposed officials under section 31(5) of the Labour Relations Act

Court orders

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  1. 1.The Motion (contempt application) is dismissed with costs.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Enforcement of the Court's judgment of 7 February 2024 and decree dated 9 February 2024 ordering registration of a trade union; contempt of court jurisdiction

Relief refused

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Committal of the Ag. Registrar to twelve months civil jail and a fine of not less than Kshs. 1,000,000

The Registrar's failure to register the proposed union was not wilful or deliberate; the proposed General Secretary is disqualified under section 31(5) of the Labour Relations Act having been convicted of theft by servant

p. 3

Costs

The Motion dated is dismissed with costs (costs to the Appellants/Applicants as sought, per prayer iv).

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.

Court judgments must always be put in context. The judgment of this Court did not direct the Registrar to close her eyes to the applicable legal framework for registration of a proposed union and its promoters as oficials.
p. 3context of court orders vis-à-vis statutory duties
Considering the impact of section 31(5) of the Labour Relations Act and the fact that the promotors of the proposed union have not satisfied the legal requirement of the aforesaid section, this Court finds that there has been no willful or deliberate intention on the part of the Registrar of Trade Unions to disobey the decree of the Court.
p. 3elements of contempt - wilfulness
The Appellants must put their house in order before alleging disobedience of court orders on the part of the Registrar of Trade Unions.
p. 3duty of litigants seeking enforcement
The Motion dated is dismissed with costs.
p. 3final orders

Issues in the judgment

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minor

The case number of this suit is not stated anywhere in the judgment as reproduced

minor

Identity of the Appellants/Applicants is inferred from Court of Appeal case citations rather than stated in the coram or title

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, "M’mbolo & 6 others v Registrar of Trade Unions; Kenya National Private Security Workers Union & another (Interested Parties) (Appeal 5 of 2020) [2024] KEELRC 1340 (KLR)", Case Analysis (2024). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1340/eng@2024-06-05

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