https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2279

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **APPEALS DIVISION** **APPEAL NO. E159 OF 2025** BETWEEN KENYA UNION OF NONGOVERNMENTAL ORGANIZATION, EMPLOYEES & PROVIDERS…………………………………. APPELLANT AND REGISTRAR OF TRADE UNIONS……..…………………. RESPONDENT **Being an appeal from the decision of the Registrar of Trade Unions (Ms. A. K. Kanake) cancelling the registration of the Appellant as a trade union dated 24th April, 2025*)*** **RULING** 1. Before this Court is the Appellant/Applicant’s Notice of Motion dated 22nd May, 2025 seeking the following orders inter alia; * 1. *Spent…...* 2. *That pending the hearing and determination of this application, there be a stay of the decision of the registrar of trade union dated 24th April 2025 cancelling the registration of the Applicant.* 3. *That pending the hearing and determination of the appeal herein, there be a stay of the decision of the registrar of trade union dated 24th April 2025 cancelling the registration of the Applicant.* 4. *That the draft memorandum of appeal herein annexed be deemed as duly filed by the Appellant upon payment of the requisite fees.* 2. The Appellant/Applicant being dissatisfied with the decision of the Registrar of Trade Unions, A.K. Kanake made on the 24th April, 2025 appealed against the whole of the said order to this court via Memorandum of Appeal dated 22nd May 2025 on the following grounds as summarized below; * + - 1. *That the Registrar misdirected herself in issuing the cancellation order against the Appellant.* 2. *That the Registrar erred in law and fact by cancelling the Appellant’s registration without verifying compliance with statutory filing obligations.* 3. *That the Registrar’s cancelation was arbitrary and erroneous in fact and law given that the Appellant had submitted the annual returns via email.* 4. *The Appellant was willing and able to remedy any administrative shortcomings and had already complied with the filing requirements.* 5. *That the registrar failed to consider less drastic administrative remedies before opting for cancelation.* 3. It is the Appellant/Applicant prayer that; * 1. The appeal be allowed; 2. This Honourable Court quashes the Respondent’s decision of 24th April, 2025 to cancel the Appellant’s registration and 3. The Honourable Court direct the Respondent to reinstate the Appellant’s registration as a union. 4. On 29th May 2025, the matter came before me for mention, no ex-parte orders were issued against the Respondent as the Appellant/Applicant took more than a month to move the Court against the decision of the Registrar as required by the Rules. Therefore, the Appellant/Applicant was ordered to serve the application and the draft Memorandum of Appeal on the Respondent who was at liberty to respond to it within 14 days of service. 5. The Respondent, in reply to the application and appeal, filed a Replying Affidavit sworn on 19th June,2025 by the Acting Registrar of Trade Union Ann Kanake who averred the following briefly: - * 1. *That I am the Acting Registrar of Trade Unions.* 2. *That the mandate of the Respondent is the registration and regulation of trade unions, employer’s organizations and federations.* 3. *That from the year 2021 to date, the Appellant has persistently failed, refused, and or neglected to file its annual returns with the Respondent and has equally failed to submit its books of account for inspection in contravention of its statutory obligations as prescribed under the above referenced sections I.e., Section 44 and Section 43 of the Labour Relations Act.* 4. *That the Respondent has, on several occasions issued notices to the Appellant, including but not limited to notices of intended cancellation as reminders and demands for compliance with the statutory requirements to file annual returns and submit books of accounts for inspection. These notices were issued consistently from the year 2022, but the Applicant has failed to comply as required by law.* 5. *That despite receiving the said notices, the Appellant has refused and or ignored the same and continued operating in blatant disregard of the requirements by the law.* 6. *That the said Act mandates the Respondent under Section 28 to cancel any union that operates in contravention of the Act. The Act stipulates;* *28.(2) The Registrar shall cancel or suspend the registration of a trade union, employers’ organization or federation if the Registrar is satisfied that the trade union, employers’ organization or federation-* *(b) is operating in contravention of this Act.* * + 1. *That consequently, the Appellant having failed to comply with direct instructions from the Act and the Office of the Registrar, the Respondent proceeded and cancelled the registration on the union, by following due process as outlined under the aforementioned Section 28 which requires that the Registrar to issue sufficient notice and to give reasons for the cancellation.* 2. *That the Appellant is simply facing the consequences of their non-compliance and adherence to the law even upon receiving several notices, and are trying to hoodwink this honourable court to sanitize their illegal operations.* 3. *That I associate myself with the findings of* ***Honourable Justice Nduma Nderi*** *who when faced with similar appeal in* ***Petition No. 98 of 2015; Kenya Union of Employees of Voluntary and Charitable Organizations (KUEVACO) & Anor Vs. Registrar of Trade Unions****.* 1. On 16th February, 2026, the matter came up before me for mention and parties where I directed the parties to file their submissions within 21 days. Both parties complied. 2. However, the Court has noted that both the Appellant/Applicant’s submissions dated 17th December, 2025 and the Respondent’s submissions dated 12th February, 2026 only dealt with the issues in the appeal and not the application. Therefore, in the interest of fast tracking the matter and saving on judicial time, this ruling will serve as the determination of the application as well as the main appeal. **APPELLANT’S SUBMISSIONS** 1. The Appellant through their Advocates Ojijo Senah & Associates filed written submissions dated 17th December, 2025 and on the issue of whether the Appellant complied with statutory requirements under the Labour Relations Act, counsel submitted among others that the Appellant substantially complied with the section 43 and 44 of the Labour Relations Act by submitting its annual returns and books of accounts within the prescribed timelines through email which email it produced before this court. Counsel contended that the Respondent neither disputed the authenticity of the email correspondence nor adduced evidence that the documents were not received or were deficient. 2. The Appellant argued that submitting returns via email was a mode of communication that was routinely accepted by public bodies and that pursuant to Section12 of the Labour Act, the Registrar must recognize such compliance absent concrete evidence of deficiency. Counsel relied on the case of ***Ouma & Another (Suing on behalf of the proposed Accounts Union of Kenya-AUK vs Registrar of Trade Unions [2025] KEELRC 2651***. 3. On the issue of procedural fairness and administrative justice, Counsel submitted that the Respondent violated Article 47 of the Constitution and Section 4(3) of the Fair Administrative Act, 2015 by drastically cancelling the Appellant’s registration without first verifying that it had not complied, considering its submissions, or giving it prior notice and an opportunity to be heard. Counsel relied on the case of ***Judicial Service Commission vs Mbalu Mutava & Another 2015 eKLR***. 4. On the issue of proportionality and alternative remedies it was submitted that proportionality is entrenched in our constitution and that the Respondent had acted disproportionately by cancelling the Appellant’s registration without first considering less restrictive measures. Counsel argued that the Respondent should have first considered issuing a compliance notice or a written warning, directive to produce documents within specific period through any mode of service, administrative penalty, summons for inspection and maybe a temporary suspension pending compliance. Counsel argued that the cancellation of registration extinguishes legal existence of a trade union, and it being the most severe sanction ought to be reserved for cases of persistent and deliberate non-compliance, and relied on the case of ***Kenya Human Rights Commission vs Non-Governmental Organizations Coordination Board [2016] eKLR*** to submit that administrative action must be proportionate, reasonable and not punitive. 5. Lastly, Counsel took issue with the averments in the Respondent’s Replying Affidavit and submitted that the Appellant had produced documentary evidence to show that it had filed its returns. That the Respondent neither denied this nor provided any evidence to prove that it did not receive the documents. Counsel argued that the Respondent did not address the Appellant’s evidence. That the Respondent had failed to demonstrate that it had issued the Appellant any notice of deficiency or afforded the Appellant an opportunity to be heard as required by the rules of natural justice and the Fair Administrative Action Act and instead relied on procedural technicalities contrary to Article 159(2)(d) of the Constitution. Furthermore, it is Counsel’s argument that if indeed the Appellant failed to file returns, the Respondent ought to have produced filing registers, correspondence, inspection notices, or any other records to substantiate its decision. **RESPONDENT’S SUBMISSIONS** 1. The Respondent through E.S Karbolo a state counsel at the office of the Attorney General & Department of Justice filed written submissions dated 12th February, 2026 and on the issue of whether the Respondent legally deregistered the Appellant’s union for non compliance with the requirements to file its annual returns with the Respondent, Counsel for the Respondent submitted that the Registrar has the authority and acted within the law under Section 43 and 44 of the Labour Relations Act in deregistering the Appellant for failing to file annual returns and maintain proper books of accounts. Counsel submitted that before the deregistration, the Respondent had issued the Appellant with notices, demands and reminders as attached in its Replying Affidavit. According to Counsel, the Appellant failed to do so, leaving the Respondent with no option but to proceed with the deregistration. 2. On the issue of who should bear the costs of this appeal, Counsel submitted that the appeal lacked merit and urged the court to dismiss the appeal with costs. They relied on the case of ***Cecilia Karura Ngayu vs Barclays Bank of Kenya & Another [2016] eKLR.*** **DETERMINATION** 1. The court has reviewed and considered the pleadings and submissions by the parties and the authorities relied herein and is of the view that this is a single-issue Appeal which is: \_ * 1. **Whether the Respondent’s decision to deregister the Appellant’s union was justified and lawful.** 2. It is not disputed that the Appellant was registered as a Union on 19th February, 2020. However, on 24th April, 2025 the Respondent issued a notice to the Appellant cancelling its registration for the following reasons; * 1. Failure to file annual returns for the years 2021-2024 contrary to the provisions of Section 43 of the Act. 2. Failure to produce the books of accounts and records for the registrar inspection contrary to the provisions of Section 44 of the Act. 3. Aggrieved by this decision, the Appellant filed the present appeal. 1. **Section 43. of the Labour Relations Act provides that;** 2. *The authorised representative of a registered trade union, employers’ organisation, or federation shall furnish annually by a prescribed date to the Registrar a general statement of all receipts and expenditure during the year ending 31st December of the preceding year including—* * 1. *all sums of money received by way of donations or grants from any local or overseas sources;* 2. *a list of assistance received from any sources; and(c)a list of the assets and liabilities of the trade union as at 31st December.* 3. *The statement specified under subsection (1) shall be accompanied by a copy of the auditor’s report and shall be prepared in such form and contain such particulars as may be prescribed.* 4. *The authorised representative referred to in subsection (1) shall simultaneously furnish to the Registrar—* * + - 1. *an inventory of the trade union or organisation’s assets;* 2. *a copy of the rules in force, including all alterations and amendments to the rules, and of all new rules; and* 3. *a list of all changes of officials during the preceding year.* 5. *Every member of a trade union, employers’ organisation or federation is entitled to receive, free of charge on request, a copy of the general statement referred to in subsection (1).* 6. *An authorised representative of any trade union or employers’ organisation who—* 7. *fails to comply with any of the requirements of this section;* 8. *(b)willfully makes or orders, causes or procures to be made a false entry in or omission from a general statement, copy or list delivered to the Registrar in terms of this section, commits an offence*. 9. **Section 44 provides that;** *The accounts of a trade union, employers’ organisation or federation and a list of its members shall be open to inspection by* 1. *an official or member of a trade union, employers’ organisation or federation at such times as may be specified in its constitution; and* 2. *(b)by the Registrar, or any person authorized in writing by the Registrar, at any reasonable time.* 3. In determining whether the above provisions were correctly applied and that the Respondent was justified in cancelling the Appellant's registration, the Court must first consider the basis upon which the Respondent arrived at that decision. 4. The Respondent alleges that the Appellant did not file a single annual return from the year 2021 up until this appeal was filed. As detailed in the affidavit of Ann K. Kanake (the acting Registrar of the Respondent), the Respondent had on several occasions issued formal notices to the Appellant including notices of intended cancellation, as reminders for compliance with statutory requirements to file annual returns and submit books of account for inspection but the Appellant failed to comply as required by law. Evidence had also been presented of the said notices and letters dated 22nd February 2022, 12th February 2025 and 24th April 2025. 5. On the other hand, the Appellant claimed that it did in fact pay and file its annual returns, however, I note that there is no evidence before me which prove that returns were indeed filed for the years in dispute or evidence of payment. The court notes the email correspondences by the Appellant to the Respondent dated 25th March 2022 and 7th March 2022, however, the attachments to the email including any payment receipts allegedly sent to the Respondent were not presented before me to ascertain and prove that indeed the Appellant had paid and filed its annual returns. It is trite that he who alleges must prove, consequently, the Court is unable to find that the Appellant complied with Section 43 and 44 of the Labour Relations Act. 6. On the issue of the notices, the Appellant claims that it did not receive any notice from the Respondent. 7. **Section 4(2) of the Fair Administrative Action Act** provides that; 8. *Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.* 9. *(2) Every person has the right to be given written reasons for any administrative action that is taken against him.* 10. *Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision–* * 1. *prior and adequate notice of the nature and reasons for the proposed administrative action;* 2. *an opportunity to be heard and to make representations in that regard;* 3. *notice of a right to a review or internal appeal against an administrative decision, where applicable;* 4. *a statement of reasons pursuant to section 6;* 5. *notice of the right to legal representation, where applicable;* 6. *notice of the right to cross-examine or where applicable; or* 7. *information, materials and evidence to be relied upon in making the decision or taking the administrative action.* 11. *The administrator shall accord the person against whom administrative action is taken an opportunity to–* * + - 1. *attend proceedings, in person or in the company of an expert of his choice;* 2. *be heard;* 3. *cross-examine persons who give adverse evidence against him; and* 4. *request for an adjournment of the proceedings, where necessary to ensure a fair hearing.* 12. *Nothing in this section, shall have the effect of limiting the right of any person to appear or be represented by a legal representative in judicial or quasi-judicial proceedings.* *(6) Where the administrator is empowered by any written law to follow a procedure which conforms to the principles set out in Article 47 of the Constitution, the administrator may act in accordance with that different procedure.* 1. The evidence showed that on 22nd February 2022, the Respondent sent the Appellant a letter urging the Appellant to file its annual return failing which consequences would ensue. The court has looked through the Appellant’s documents and found that there was an email correspondence from the Appellant to the Respondent on 25th March 2022 with the subject heading ‘Filling of annual returns’ in which the Appellant sought an acknowledgement of the filed returns. This email being the only email that specific year and only email ever sent evidencing the Appellant’s alleged filed returns, coming barely a month after the Respondent's letter dated 22nd February 2022, leads the court to conclude that the Appellant did indeed receive the letter. 1. Furthermore, in as much as the evidence showed that the Appellant made a payment of Kshs. 3,250 to the Respondent on 17th April 2025, further proof that the payment was made in response to the Respondent’s notice dated 12th February 2025, the Court observes that this payment was made after the deadline set by the Respondent had already expired. The Appellant had been given until 1st March 2025 to comply however, it did not do so. Neither did the Appellant request for a further extension. The Respondent was therefore entitled to act on the default as at 1st March 2025. The Court is therefore not persuaded that this late payment cured the Appellant's persistent and prolonged default spanning four years. 2. Having considered the evidence on record, the Court is satisfied that the Respondent issued adequate notices to the Appellant before taking the impugned action. Despite being afforded sufficient opportunity to comply, the Appellant failed to do so within the timelines provided. In the circumstances, the Court finds that the Respondent complied with the requirements of section 4(2) of the Fair Administrative Action Act. The Appellant's claim that its right to fair administrative action was violated is therefore without merit and fails. 3. The Court is alive to the mandate of the Respondent under Section 28, 43 and 44 of the Labour Relations Act to regulate trade unions and to ensure strict compliance with the statutory obligations imposed upon them. 4. I am guided by the decision of the Honourable Justice Nderi Nduma in the case of [***Kenya Union of Employees of Voluntary and Charitable Organizations (KUEVACO) & Anor v Registrar of Trade Unions***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/419)***2017 KEELRC 419(KLR) observed:-*** *“The Court is satisfied that the provisions of section 28 and 43 are for proper regulation, management and democratisation of trade unions. Officials of the unions must be accountable to their members and must at all times observe the law of the land… these provisions do not derogate from the freedom of association and the right to a trade union provided under article 36 of the Constitution 2010…the provisions of section 28 and 43 provide for lawful limitation to the provisions of article 36 and 41. The need for the Registrar to regulate unions in accordance with the Act, is reasonable and justifiable in an open and democratic society like Kenya as provided in article 24 of the Constitution…”* 1. Within the framework of ILO, trade unions play a crucial role in promoting decent work, advocating for workers' rights, and influencing social and economic policies. They act as key players in the ILO's tripartite structure, working alongside governments and employers to set labour standards, develop policies, and implement programs that ensure fair and equitable working conditions. ILO Convention 87 on Freedom of Association and Protection of the Right to Organise, 1948 is one of the key conventions in the ILO architecture and the backbone of international trade union movement. It however provides under article 8 that in exercising the rights provided for in the Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land. 2. Trade union management and accountability to members is therefore crucial for maintaining member trust and ensuring the union effectively represents its members' interests. This includes financial transparency, democratic decision-making processes, and effective communication about union activities and policies. Deriving from the foregoing, it is therefore counter to the spirit and intendment of trade unionism for the Appellant not to obey the law for that long despite reminders from the Respondent. 3. As a union, the Appellant remain accountable and that accountability can only be assured by complying with the law. For the above reasons, the Respondent was within its right to take the action it did against the Appellant by deregistering the Appellant after it failed to comply with the law of the land for such a long time despite reminders to do so. 4. **The Appeal is therefore found without merit and is hereby dismissed with no orders as to costs.** 5. **For avoidance of doubt and as earlier observed, this Ruling determines the issues in the application dated 22nd May, 2025 and this appeal.** 6. **As I conclude, if my advise was to be sought, I would encourage the appellant leverage on the late payment of the fees and the filling of the needed returns to negotiate for its restoration to the Register of Trade Unions but as things stand now, the appeal is found without merit and as already stated it is hereby dismissed with costs.** 7. **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**