https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2324

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **ELRCA APPEAL NO. E187 OF 2025** **DAVID CHEMURSOI CHETALLAM ……………………1ST APPELLANT** **ROLINE MUMBUA MUENDO ……………..…..…............2ND APPELLANT** **AUGUSTUS OSEKO NYABUTI…………………..……….3RD APPELLANT** **(Suing on behalf of the Proposed Kenya Union of School Bursars and Accounts Clerks)** **-VERSUS-** **THE REGISTRAR OF TRADE UNIONS…………………. RESPONDENT** **JUDGMENT** 1. Through the Memorandum of Appeal dated 3rd June, 2025, the Appellants approached this court fronting 9 grounds of appeal. 2. The Appellants in summary raised the following grounds: \_ * 1. The Respondent so gravely and seriously erred when she prematurely refused to issue the Appellants with a promoter's certificate for recruitment of members for establishing the proposed union. 2. The Respondent's decision to decline the issuance of the Certificate upon the ground that School Bursars and Accounts Clerks were already represented by another existing Union namely Kenya Union of Secondary School Non-Teaching Staff, that the constitution of the said union covered the same scope as the proposed Union was a reason not within the provisions of Section 12 (3) of the Labour Relations Act. 3. The Respondent so gravely and seriously erred in declining to issue the Appellants with a Certificate of recruitment on grounds than those provided for under Section 12 (3) of the Labour Relations Act, in the sense that, an application under Section 12 of the Act should be declined if the application is incurably defective or if the proposed union name already exists or is so similar to an existing union as to cause confusion. In her letters dated 6th November, 2024, 13th March, 2025 and received on 26th May, 2025, the Respondent did not raise any of those grounds as the reasons for declining the issuance of a promoters' certificate for recruitment. Hence, the Respondent's decision being non- compliant with Section 12 of the Labour Relations Act. 4. The Respondent erred by denying the Appellants the Certificate of recruitment as was applied for. Technically and procedurally the Appellants were at the initial stages of applying for a certificate under Section 12 of the Act. The stage for application of Section 14 in the process had not accrued. The Appellants could not be able to fulfil the requirements of Section 13, 14, 18, 19 and 20 of the Labour Relations Act without the promoters' certificate of recruitment under section 12 of the Act. Thus, the Registrar's letters dated 6th November, 2024, 13th March, 2025 and received on 26th May,2025, were unlawful. 5. That Section 12 is mandatory and is designed to properly regulate the Respondent's discretion in the exercise of statutory duty. The Respondent gravely acted without jurisdiction by failing to look into the provisions of Sections 12(2) (a) (b) (c) and 3 (a) (b). 6. That consequently, the Respondent has fundamentally and substantively violated the rights of the Appellants to exercise their rights as provided under Article 36 and 41 of the Constitution of Kenya and breached the provisions of Sections 4 and 12 of the Labour Relations Act, and similarly, has acted in breach of statutory mandate conferred upon her office to discharge fairly, reasonably and not whimsically, capriciously, frivolously and callously. 7. The errors made by the Respondent to camouflage under the guise of the existence of another trade union is in itself self-defeatist as the same is not a ground set by Section 12 of the Act. Her actions were meant to breach the rights of the Appellants in establishing a trade union as provided for under section 12 of the Act and Article 41 of the Constitution, the right and freedom of expression as provided for under Article 36 of the Constitution, and the right to enjoy a fair administrative action as provided for under Article 47 of the Constitution. 8. The Appellants of the proposed union have complied with the requirements of Section 12 of the Labour Relations Act. 9. In sum, the Respondent gravely and seriously erred in arriving in a decision not supported by Section 12(3) of the Act. Her decision ought to be set aside. 3. The Appellants prayed for orders that the Appeal be allowed with costs on the following Orders. 1. A declaration that the Respondent failed in her statutory duty when she communicated her decision vide letters dated 6th November, 2024, 13th March, 2025 and received on 27th May 2025, declining to issue the Appellants with the recruitment certificate in terms of Section 12 of the Labour Relations Act, 2007, her actions being bad in law, her letters dated 6th November, 2024 and 13th March, 2025 be declared invalid, null and void ab initio. 2. A declaration that the fundamental rights and freedoms of the Appellants were substantively breached by the Respondent's refusal to issue them with a Certificate of Recruitment sought. 3. An order of injunction compelling the Respondent to issue the Appellants with the Certificate of Recruitment for the proposed Kenya Union of School Bursars and Accounts Clerks "KUSBAC" as applied in their letter dated 26th September, 2024 and 3rd March, 2025. 4. The Respondent did not participate in this appeal proceedings and the Appeal was dispensed of by way of written submissions. **APPELLANTS’ SUBMISSIONS** 1. The Appellants’ Advocates Wycliffe Nyabuto Advocates filed written submissions dated 4th March, 2026 and on the issue of whether the Respondent, in denying the Appellants a Certificate for recruitment of members for purposes of forming a trade union, acted in accordance with the applicable provisions of section 12 of the Labour Relations Act counsel submitted that the Registrar of Trade Unions, failed in her statutory duty by declining to issue the Appellants with a Certificate for Recruitment as mandated by Section 12 of the Labour Relations Act. That further section 12(2) of the Labour Relations Act outlines the requirement in the application for grant of the Certificate mentioned above. 2. Counsel submitted that for grant of a certificate for recruitment, section 12(2) of the Labour Relations Act does not envisage any other requirements in the application apart from the ones listed therein. Indeed, the Respondent did not raise any concern with the Appellants compliance with section 12(2). The application was signed by three promoters; the name was uniquely identified and information relating to the reasons for the application were disclosed. Further, section 12(3) of the Labour Relations Act of the Act provides that the registrar shall issue a Certificate within thirty days of receiving an application unless: a) the application is defective b) the name of the proposed trade union or employers' organization is the same as that of an existing trade union c) employers' organization or is sufficiently similar so as to mislead or cause confusion. 1. Counsel submitted that in declining to grant them a Certificate under section 12 of the Labour Relations Act, the Respondent did not invoke any of the grounds prescribed in section 12 (3) of the Labour Relations Act but acted unreasonably by invoking a ground that was not contemplated, namely, that the Appellants' proposed union would recruit members that were sufficiently represented by Kenya Union of Secondary School Non- Teaching Staff. 2. It was submitted that at that initial stage the Registrar was bound to only consider the mandatory criteria in section 12 (3) in granting or declining the prescribed Certificate for recruitment of members since at this stage it is not an application for registration of the union but an initial Certificate to facilitate the recruitment and then thereafter, the application for registration will follow in six months. 3. Counsel relied on Section 13 of the Labour Relations Act which provides that a trade union or employers' organization shall apply to the registrar for registration within six months of receiving a Certificate issued under section 12. That this was the finding by Honourable Lady Justice J. W Keli when determining a similar dispute in **Ouma & another (Suing on Behalf of the Proposed Accountants Union of Kenya- A UK) v Registrar of Trade Unions (Employment and Labour Relations Appeal E077 of 2025) [2025) KEELRC 2651 (KLR)** where she ultimately allowed the Appeal. 4. The Appellant in essence reiterated the grounds of Appeal in these submissions. **DTERMINATION** 1. The court has reviewed and considered the pleadings and submissions by the Appellants and the authorities relied herein and is of the view that this is a single-issue Appeal which is: \_ * 1. *Whether the Registrar’s refusal to issue the certificate of establishing a trade union to the Appellants was justified and lawful.* 2. The dispute herein is anchored on the provisions of the Labour Relations Act sections 12 of the Labour Relations Act which provides as follows: \_ *12.(1) No person shall recruit members for the purpose of establishing a trade union or employers' organisation unless that person has obtained a certificate from the Registrar issued under this section…* *(3) The Registrar shall issue a certificate within thirty days of receiving an application unless –* *(a) the application is defective; or* *(b) the name of the proposed trade union or employers’ organisation is the same as that of an existing trade union or employers’ organisation or is sufficiently* *similar so as to mislead or cause confusion.* 1. The Appellant’s alleged that the right section the Registrar ought to have applied was section 12 as it was seeking establishing a trade union before it goes to the second and third stage of registration where the two trade unions in existence would be involved as per section 14 of the act. That only preconditions under section 12 were if the application was defective or if the name was similar to an existing trade union to cause confusion. According to the appellant, they were promoting a union by the name Kenya Union of School Bursars and Accounts Clerks (KUSBAC) which was different from the existing union called Kenya Union of Secondary School Non-Teaching Staff. 2. The Appellants averred that the issue of membership of where the trade union would draw members was to be dealt with at registration stage not this initial stage. 3. Whereas the Respondent never participated in this appeal the response dated 6th November, 2024 and 13th March, 2025 the Registrar indicated that section 14(1) of the Labour Relations Act forbids registration of union where there exists another union representing the interests of those employees. That there existed another union Kenya Union of Secondary School Non-Teaching Staff which represented the interests the proposed union members would be representing and that registering a similar union in the same sector would lead to inter-union rivalry and wrangles due to scrambling for members which does not auger well for industrial peace and harmony and further makes it difficult for employees to engage in collective bargaining and obtain recognition agreement from the employers. 4. The Appellants through their advocates wrote a letter dated 3rd March, 2025 and illustrated that the members sought to be represented stated that they were not members of Kenya Union of Secondary School Non- teaching staff and their needs could not be covered and addressed by the said union. That their members would be drawn from learning institutions that is Primary, Junior Secondary schools and Secondary schools. That the same shall be school bursars and accounts clerks of those institutions. 5. The Appellants indicted that the union they sought to register was different from the existing union which only drew membership from secondary school and it caters for all non-teaching staff which is a wide range personnel. That the union they intend to register will only be comprised of school Bursars and Accounts clerks who have unique and peculiar needs which no other union has ever addressed. 6. ThThe issueThe court notes that the Appellants have their Constitutional rights under Article 36 and 41 as well as section 4 of the Labour Relations Act to form or join or participate in activities of a union or association. The same is not absolute and is limited under Article 24 of the Constitution. This was the position arrived by this court in the case of **Charles Salano & 9 others v Registrar of Trade Unions & another [2015] KEELRC 149 (KLR)** which decision was upheld on appeal to the Court of Appeal which had similar facts as this case the court went on to find as follows: - “…*Trade Union movement is concerned with protection of workers and employers’ rights as a collective. This right is protected under article 41 of the Constitution, International Laws and ILO Conventions. The right however is not absolute. It can be regulated or limited in context of article 24 of the Constitution. That is, such regulation or limitation must be seen in the context of what is permissible in an open and democratic society. Therefore, in so far as the right to join, leave or form a trade union of one’s choice goes, no union can be registered if there is already in existence a union which sufficiently represents the interest of the workers or employers sought to be represented by the new union…”* 1. The Appellants alleged that this court should solemnly be guided by section 12 of the Labour Relations Act at this initial stage and not deal with section 14 of the Act and the court agrees and is further guided by the decision in **Charles Salano & 9 others (Proposers & Promoters of Kenya Supermarkets Workers Union (KESMWU) v Registrar of Trade Unions & another [2017] KECA 398 (KLR**) in which was an appeal from the decision of this court was upheld by stating that:- “…*Accordingly, for a proper interpretation of****Sections 12****,****13****and****14****of the Act to be arrived at, the said provisions ought to be read conjunctively. We say so as any party desirous of registering a trade union cannot comply with either of the said provisions in isolation. Five steps in the registration of a trade union can be discerned from the Act…”If the I* 1. The Appellants at this point apart from the name of the proposed union which is different from the existing union, have illustrated what the proposed union will deal with which they feel is not sufficiently represented by the existing union. A reading of section 12 of the Act reveals that it is simply an expression of an intention to register a Trade Union and not the registration exercise itself. The consideration whether the proposed union in its objects and target membership espouse similar objects and membership already represented by an existing union is a consideration under section 14 which is why under the proviso to section 14, the Registrar is required to issue a notice in the Gazette and in one national daily newspaper with wide circulation, notifying any registered trade union, federation of trade unions or employers’ organisation which appear to him to represent the same interest as the applicants of the receipt of such application and invite the registered trade union federation of trade unions or employers’ organisation concerned to submit in writing, within a period to be specified in the notice, any objections to the registration. 1. Whereas It is at this stage and upon receiving objections by unions that feel the sector intended to be represented by the proposed union is already adequately represented by the proposed union that the Registrar can refuse the registration but not at the stage of the application under section 12. 2. **From the foregoing, the Appeal is therefore found merited is hereby allowed with costs as follows:** * 1. **The registrar’s letters dated 6th November, 2024 and 23rd March, 2025 are hereby declared invalid, null and void.** 2. **The registrar of trade unions is hereby ordered to issue the Appellants with Certificate of Recruitment for the proposed Kenya Union of School Bursars and Accounts Clerks (KUSBAC) as applied in their letter dated 26th September, 2024 and 3rd March, 2025 within 30 days from the date of this judgment.** 3. **It is so ordered.** **Dated at Nairobi this 28th day of July, 2026** **Delivered virtually this 28th day of July, 2026** **Abuodha Nelson Jorum** **Presiding Judge-Appeals Division**