Kenya National Union of Teachers v Lagat & another (Civil Appeal 83 of 2017) [2022] KECA 810 (KLR) (24 June 2022) (Judgment)
Neutral citation:
[2022] KECA 810 (KLR)
Republic of Kenya
Civil Appeal 83 of 2017
RN Nambuye, J Mohammed & HA Omondi, JJA
June 24, 2022
Between
Kenya National Union of Teachers
Appellant
and
Barnabas Lagat
1st Respondent
John Githua Mbate
2nd Respondent
(Being an Appeal from the judgment of the Employment and Labour Relations Court at Nairobi (Hellen Wasilwa, J.) dated and delivered at Nairobi on the 1st day of February, 2017) in ELRC NO. 12 OF 2016)
Judgment
Background
1.Barnabas Lagat and John Githua Mbate (the respondents) being desirous of registering a Trade Union known as the Kenya Teachers Congress (KTC) approached the office of the Registrar of Trade Unions to facilitate their aforesaid intention. They lodged an application for issuance of a certificate of establishment of a trade union at the office of the Registrar of Trade Unions.
2.The Registrar of Trade Unions made a decision on 29th March, 2016, and invoked the provisions of Section 12 as read with Section 14 of the Labour Relations Act (the Act) and declined to issue a Certificate of Recruitment leading to registration to the respondents.
3.The principal reason cited for the said decision was that the intended sector of coverage was sufficiently represented by the already registered unions including Kenya National Union of Teachers (KNUT) the appellant herein.
4.Aggrieved by the decision of the Registrar of Trade Unions, the respondents lodged an appeal at the Employment and Labour Relations Court (ELRC). The ELRC (Wasilwa, J.) rendered a judgment on 1st February, 2017, and held that the decision by the Registrar of Trade Unions to deny the respondents their application for a certificate of recruitment to the intended union was not reasonable and justifiable.
5.Aggrieved, the appellant has appealed to this Court against that judgment in its entirety and seeks that the judgment be set aside. The appeal is premised on grounds which may be summarized as follows: -a)That the learned judge erred in law in interpreting the provisions of Section 12 of the Labour Relations Act regarding issuance of certificate of recruitment of members to a trade union.b)That the learned judge erred in law and in fact by failing to consider the letter and spirit of the Labour Relations Act, and particularly Section 12(3) and 14(1)(d).c)That the learned judge erred in finding that the decision of the registrar of Trade Unions as premature, unreasonable and unjustified.d)That the learned judge erred in law and in fact by failing to take into consideration the fact that the interests of the purposed members of the respondents’ outfit were already catered for by the appellant union.
Submissions by counsel
6.The appeal was disposed of by way of written submissions with oral highlights. The appellant filed submissions while the respondents did not file their written submissions.
7.At the plenary hearing, learned counsel for the appellant, Mr. Hillary Sigei submitted that the Registrar of Trade Unions acted within her purview by declining to issue the certificate of recruitment as the objectives of the prospective trade union were similar to the already existing ones and would only lead to confusion.
8.The appellant further submitted that the learned judge erred by interpreting one section of the Act instead of giving it a holistic approach. That for proper application of the section, one ought to interpret Section 12 read together with Section 14(1) (d). That the section cannot be interpreted in isolation. The appellant cited the case of Charles Salano & 9 others (Proposers & Promoters of Kenya Supermarkets Workers Union (KESMWU) v Registrar of Trade Unions & another [2017 eKLR] which emphasized this proposition.
9.The appellant further submitted that the Registrar of Trade Unions acted within the purview of her powers as stipulated in Section 12(3) and 14(1), (d). That the Registrar is mandated under the Act to ensure due diligence while performing her duties in order to ensure justice to all and safeguard industrial peace and harmony.
10.The appellant also submitted that the respondents did not fully outline which section of the teachers they were representing. That having looked at the letter addressed to them by the Registrar of Trade Unions it is evident that all groups they were to represent already have adequate representation. Further that the respondents had the onus of proving that the union to be formed was to represent teachers who lacked representation.
11.At the plenary hearing there was no appearance by counsel for the respondents despite service.
Determination
12.We have perused the record of appeal, the impugned judgment, the grounds of appeal, the written as well as oral submissions, the authorities cited and the law.
13.This is a first appeal and we are at liberty to delve into matters of fact as well as law and make our conclusions therefrom. See Section 17 (1) of the Employment and Labour Relations Court Act (the ELRC Act) and the celebrated case of Selle –Vs- Associated Motor Boat & Co [1968] E.A. where the predecessor of this Court pronounced itself thus: -
14.This appeal is premised on the meaning and interpretation of Sections 12, and 14 of the Act. We say so as the sole issue in controversy in this appeal is whether the Registrar of Trade Unions can decline to register a proposed trade union.
15.This Court in Charles Salano & 9 others (Proposers & Promoters of Kenya Supermarkets Workers Union (KESMWU) v Registrar of Trade Unions & another (supra) stated as follows:
16.Section 12 of the Act provides that promoters of a proposed trade union must apply to the Registrar of Trade Unions (Registrar) for a certificate which permits the promoters to recruit members of the proposed union (Section 12 (2)). The application has to satisfy the criteria specified in Section 12 (2). The Registrar has discretion to issue or not to issue the certificate. Section 13 of the Act provides that if the certificate of recruitment is issued, application for registration of the trade union is required to be made within six months of receiving the certificate.
17.Section 14 (1) of the Act provides for nine requirements for registration of a prospective Trade Union which are that:
18.We note that the impugned judgment held that “the issues raised by the Registrar of the Trade Unions in her reply however shifts from the provision of Section 12(3) of the Labour Relations Act”. We respectfully disagree with this holding as demonstrated herein below.
19.We hold the view Section 12 of the Labour Relations Act must be read together with other provisions of the Act including Section 14 (1) (d) (i) of the Act. If Section 14 (1) (d) (i) of the Act was to be ignored one can foresee registration of a multiplicity of unions covering groups with similar interests.
20.The Registrar of Trade Unions in her letter dated 29th March, 2016 declined to issue the certificate of recruitment on the ground that “the intended sector of coverage is sufficiently represented by the already registered unions.”
21.In our view, the Registrar of Trade Unions correctly applied Section 12 as read together with Section 14 (1) (d) (i) of the Act. This is in view of the fact that the respondents’ interests were already sufficiently represented by the existing Trade Unions and creation of a rival trade union would create confusion in the area that the respondents intended to represent.
22.We are cognizant of Articles 36 and 41 (2) (c) of the Constitution which provides for freedom of association and the right to labour relations. However, Article 24 (1) of the Constitution sanctions the limitation of fundamental rights and freedoms in the following terms: -
23.In light of the fact that the respondents’ interests as teachers are already sufficiently represented in existing trade unions, the limitation of the respondents’ rights under Articles 36 and 41 of Constitution is reasonable and justifiable in an open and democratic society.
24.The upshot of the foregoing is that we find merit in this appeal and accordingly proceed to set aside the judgment and decree of the ELRC dated 1st February, 2017. The appellant shall have costs before this Court and in the ELRC.
25.As Nambuye, JA has since retired from service as a Judge of this Court, this ruling is signed in accordance with Rule 32(2) of the Rules of this Court.
DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JUNE, 2022.J. MOHAMMED...........................JUDGE OF APPEALH. OMONDI...........................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR