[2022] KEELRC 4151 (KLR)

Mugambi & 4 others v Registrar of Trade Unions (Appeal E145 of 2021) [2022] KEELRC 4151 (KLR) (29 September 2022) (Judgment)

Neutral citation: [2022] KEELRC 4151 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Appeal E145 of 2021

J Rika, J

September 29, 2022

Between

Anne Wangari Mugambi

1st Appellant

Maximiller Keitany

2nd Appellant

Joseck Akengo Abwajo

3rd Appellant

Faith Shadora Luseno

4th Appellant

Angela Fuchaka ( Suing as Promoters, Interim Officials and Applicants for Registration of Kenya National Union of Public Prosecutors (KNUPP)

5th Appellant

and

Registrar of Trade Unions

Respondent

Public prosecutors have a right to form their own trade union

The appeal challenged the refusal of the Registrar of Trade Unions (respondent) to register the appellants’ (public prosecutors) trade union. The court held that the appellants were not represented by any other trade union and thus had a right to be registered. The court further held that the guiding principles on who was management staff and who were unionisable staff needed not be restated in a trade union’s constitution to validate that trade union’s claim for registration. The court also held that the role of registration and regulation of trade unions vested with the Registrar of Trade Unions and not the National Labour Board.

Reported by James Nginya & Kakai Toili

Constitutional Law- fundamental rights and freedoms - enforcement of fundamental rights and freedoms - freedom of association, right to fair labour practices and the right to fair administrative action - whether staffers of a specialized area that sought to register a trade union to represent their unique needs could not be lumped with other public service trade unions - whether the refusal to register a trade union of public prosecutors amounted to a violation of their freedom of association, right to fair labour practices and the right to fair administrative action - Constitution of Kenya, 2010, articles 36, 41 and 47; Labour Relations Act, 2007, section 4. Labour Law- trade unions - constitutions of trade unions - whether it was necessary for a trade union’s constitution to restate the guiding principles on who was management staff and who was unionisable staff.Labour Law- trade unions - registration of trade unions - what was the role of the Registrar of Trade Unions vis a vis the National Labour Board in the registration of trade unions.Labour Law– labour unions – registration of labour unions – registration of the Kenya National Union of Public Prosecutors (KNUPP) – where the Central Organization of Trade Unions (COTU[K]) objected to the formation of KNUPP and advised the National Labour Board (of which it was a board member) against the formation of KNUPP - whether it was a conflict of interest for board members of the National Labour Board who objected to the registration of a new trade union, to advise the board of the National Labour Board on the registration of the trade union.Labour Law– labour unions – registration of labour unions – objection to registration on account of a new trade union being a splinter trade union – what was a splinter trade union - under what circumstances would a trade union be classified as a splinter trade union

Brief facts The appellants were Kenyan advocates employed as public prosecutors by the Office of the Director of Public Prosecutions (ODPP). They resolved to register a trade union in the name Kenya National Union of Public Prosecutors (KNUPP). They lodged their documents with Registrar of Trade Unions (the respondent) who declined to register the trade union following advice from the National Labour Board. The Board’s advice was as a result of an objection from the Secretary-General of the Central Organization of Trade Unions (COTU[K]).COTU[K] had objected the registration to the respondent claiming among others that public prosecutors were their own managers/ leaders, in their respective stations and therefore their level of seniority did not justify them to have a trade union. The respondent forwarded the appellants’ application for registration to the National Labour Board (which was composed of COTU[K] representatives, among other members] for its advice on registration of KNUPP. A notification of refusal of registration of KNUPP followed thereafter. Thus the instant case was an appeal from that refusal by the respondent.

Issues

Whether the refusal to register a trade union for public prosecutors amounted to a violation of their freedom of association , right to fair labour practices and the right to fair administrative action.

Whether it was necessary for a trade union’s constitution to restate the guiding principles on who was management staff and who was unionisable staff.

What was the role of the Registrar of Trade Unions vis a vis the National Labour Board in the registration of trade unions?

Whether staffers of a specialized area that sought to register a trade union to represent their unique needs could not be lumped with other public service trade unions.

Whether it was a conflict of interest for board member of the National Labour Board who objected to the registration of a new trade union, to advise the board of the National Labour Board on the registration of the trade union.

What was a splinter trade union?

Under what circumstances would a trade union be classified as a splinter trade union?

Held

Supportive documents necessary in the process of registration, under the Labour Relations Act were exhibited and were not disputed. The appellants were lawyers and represented a larger group of lawyers of about 66 including the appellants going by the minutes of their meeting held on March 31, 2021. They were all public prosecutors, working under the ODPP.

The Court did not agree with COTU [K] that the appellants should be denied registration because there were many trade unions representing different trades in the public service. COTU [K] did not state whether there was a community of interests, between the appellant and the membership of any of the alleged multiple trade unions in the public service. The Kenya National Union of Public Prosecutors (KNUPP) was a specialist trade union, with the object of advancing the rights and interests of a specialist group of lawyers, which could not be lumped together with other public service trade unions.

The ODPP organogram had a management team, led by the Director of Public Prosecutions (DPP), Secretary Prosecution Services and other deputy directors in different directorates. It had an executive secretariat, manned by various managers. KNUPP did not propose to recruit the DPP, or any of his deputies. It did not propose to recruit any management staff. The law did not require that the constitution of a trade union draw the line between who was unionisable and who was in management.

The Labour Relations Act defined a unionisable employee as an employee who was eligible for membership of a trade union. The appellants were not within the management of the ODPP. They had no decisional control of the ODPP, under the Office of the Director of Public Prosecutions Act (ODPP Act). They were employees and not managers or leaders in the organization.

The respondent ought to have referred to the ODPP Act, to see that the organization had management structures, with clearly defined responsibilities between management and employees. The management and the advisory board exercised decisional control of the ODPP. The board dealt with recruitment, promotion, discipline of staff and any other matters referred to the board by the DPP. None of the appellants exercised decisional control, or management prerogatives, in the ODPP.

It was not conceivable that the appellants would recruit Mr. Noordin Haji, the DPP, as one of their members, on account of him being a public prosecutor, as defined in KNUPP constitution. The ODPP Act placed him in management. The constitution of KNUPP did not blurr the line between management and unionisable employees.

The constitution of KNUPP was not to be read in a vacuum. The ODPP had an organogram based on its constitutive legislation, which clarified the lines of demarcation. The Industrial Relations Charter gave guidance, on who was management staff and who was unionisable staff. The guiding principles needed not be restated in any trade union’s constitution, to validate that trade Union’s claim for registration.

The respondent requested the appellants, on receiving their application, that the appellants amend their Constitution to meet certain statutory standards. The appellants complied and submitted an amended constitution. There was no requirement by the respondent for additional amendment. If there was need for further amendment, it would be prudent for the respondent to advise the appellants to make further amendment, instead of the outright rejection of registration. Trade Union constitutions were routinely amended, in line with the respondent’s statutory functions, on regulation of Trade Unions.

The role of registration and regulation of trade unions vested with the respondent. She owned the decision to register or not to register. That was why proceedings on refusal to register were initiated in court against her, and not the National Labour Board. She was not an agent of the National Labour Board. She had to exercise her discretion judiciously as she did, when she advised the appellants to amend their constitution. The law did not intend that registration of trade unions was done by the National Labour Board. The law did not intend that the role of the respondent in registration of trade unions to be reduced to rubber-stamping decisions of the National Labour Board.

The Central Organization of Trade Unions (COTU[K]) was the sole objector to registration of KNUPP. COTU[K] ubiquitously sat in the National Labour Board, rendering any advice given to the respondent by that Board, on registration of KNUPP, as worthless as a wooden frying pan.

The objection by COTU[K] that the registration of KNUPP amounted to registration of a splinter trade union, which would weaken existing trade unions was inexact. Splinter unions traditionally were formed in Kenya, when disagreeing trade union officials, mostly upon electoral defeat, moved on to register their own trade union. Splinter unions were offshoots of existing trade unions. COTU[K] did not specify from which trade union, KNUPP broke away. There was no evidence that there was another union, which represented public prosecutors.

The appellants’ freedom of association, right to fair labour relations and right to fair administrative action were abused. They were denied their rights and freedoms under section 4 of the Labour Relations Act. There was no reason why the appellants, who were professionals in the public service with an identifiable community of interests should be denied the right and freedom to associate.

The appellants were lawyers in a specialized area, of public prosecution. They could not be lumped with other public service trade unions. No such other public service trade union in any event had emerged to claim representation of their area. Other professionals in the public service had their trade unions unique to their areas of operation. There was no reason why the appellants would be denied registration of their trade union.

No trade union emerged to claim it represented public prosecutors, when the respondent invited objections. It was left to COTU[K] which was a federation of trade unions, to raise an imprecise objection. There was no evidence availed to the respondent or the National Labour Board, presented before the court, to show that the public prosecutors’ interests were sufficiently or substantially represented by any other trade union which was already registered.

Public prosecutors, like other public officers were entitled to come together, and have the ability to negotiate with their management from a position of strength, on a broad range of workplace and social issues. The Constitution of Kenya, 2010 and the Labour Relations Act granted them the rights and freedoms to associate and to act in combination. They had to be facilitated by the respondent, in registration of their trade union so that they could effectively engage with their management and the advisory board through management concerning labour relations in general, fair labour practices and their specific terms and conditions of service.

Appeal allowed.

Orders

The decision by the respondent communicated to the appellants through Form D, dated October 25, 2021 was quashed.

The respondent was to immediately and unconditionally, register the appellant’s trade union, the Kenya National Union of Public Prosecutors, issue the certificate of registration and enter its name in the Register of Registered Trade Unions.

No order as to costs

Citations CasesKenya Ahmed, Halima Adan v Seth Panyako, General Secretary Kenya National Union of Nurses & 2 others Petition E044 of 2021; [2021] KEELRC 509 (KLR) - (Mentioned)

Kenya Concrete, Structural, Ceramic Tiles, Wood Plys and Interior Designs Workers Union v Registrar of Trade Unions & another Appeal 10 of 2011; [2013] KEELRC 21 (KLR) - (Mentioned)

Olenda, Agura Patrick & 6 others v Registrar of Trade Unions Appeal No 1 of 2010; [2014] eKLR - (Explained)

StatutesKenya Constitution of Kenya, 2010 articles 36, 41, 47, 157 - (Interpreted)

Fair Administrative Action Act, 2015 (Act No 4 of 2015) section 4 - (Interpreted)

Labour Institutions Act, 2007 (Act No 12 of 2007) sections 31(1)(3) - (Interpreted)

Labour Relations Act, 2007 (Act No 14 of 2007) sections 2, 4, 12, 19; Schedule 1 - (Interpreted)

Office of the Director of Public Prosecutions Act, 2013 (Act No 2 of 2013) In general - (Cited)

AdvocatesMullomi & Company Advocates for AppellantsThe State Law Office for Respondent

Judgment

1. The appellants herein, are Kenyan Lawyers, who are employed as Public Prosecutors by the Office of the Director of Public Prosecutions [ODPP], an Office created under article 157 of the Constitution of Kenya.

2. 66 of these Public Prosecutors, including the appellants, met on March 31, 2021, where they resolved inter alia, to register their Trade Union, in the name Kenya National Union of Public Prosecutors [ KNUPP].

3. They applied for, and were granted by the respondent, a certificate under section 12 of the Labour Relations Act, 2007, to authorize them to undertake lawful activities, in order to establish a Trade Union. They were directed in terms of the said law, to apply for registration within 6 months of grant of certificate. The certificate issued on December 7, 2020.

4. They presented their application on May 31, 2021, enclosing the requisite documents: their constitution; minutes and resolutions of their meeting held on March 31, 2021; register of attendees; list of Officials; and list of applicants.

5. The respondent received the application, and wrote back, advising the appellants to amend their Constitution, to indicate on membership, that it was only open to Public Prosecutors, not all Employees of the ODPP; clarify details of the secretariat; and clarify who is in charge of their internal electoral process. The letter from the respondent is dated June 7, 2021.

6. The appellants complied, submitting their amended constitution to the respondent, on June 23, 2021.

7. The respondent then invited objections to registration as required under the Labour Relations Act, through Kenya Gazette Notice No 7490 of 2021, dated July 23, 2021, and the Standard Newspaper dated July 19, 2021.

8. The Secretary- General of the Central Organization of Trade Unions, COTU[K], wrote an objection, dated July 19, 2021. The objection was that: -a.Public Prosecutors are their own managers/ leaders, in their respective stations and therefore their level of seniority does not justify them to have a Trade Union specifically taking into consideration the prosecution duties they carry out on behalf of Government.b.The Public Service has very many different Trade Unions, and if this not curtailed, the Public Sector will have so many Trade Unions which will weaken the already existing Unions, and by extension weaken the bargaining power of Workers in Kenya. Further, such splinter Unions would cause unnecessary fights amongst themselves instead of championing workers’ rights.

9. The appellants wrote to the respondent, disagreeing with COTU [K], and restating their right and freedom of association under article 41 of the Constitution and section 4 of the Labour Relations Act.

10. The respondent advised the appellants through a letter dated August 30, 2021, that she had forwarded their application to the National Labour Board [which is composed of COTU [K] representatives, among other members] for its advice on registration of KNUPP.

11. A Notification of Refusal of Registration of KNUPP dated October 25, 2021 followed. The appellants were advised that:a.The envisaged scope of representation, being all Public Prosecutors under the Office of the Director of Public Prosecutions is confusing, as head of department [DPP] is also a Public Prosecutor, who as it were, is eligible to join the Union.b.The proposed constitution does not contextualize between Unionisable Employees and Management. The Labour Relations Act defines Unionisable Employees to mean, ‘’in relation to a Trade Union, the Employees eligible for membership of a Trade Union.’’c.The open-ended eligibility for membership does not distinguish between an Employer and an Employee as defined under the Labour Relations Act.

12. The appellants filed their Memorandum of Appeal dated November 19, 2021, which is founded on the affidavit of the 1st appellant, sworn on even date. They restate the that the respondent ignored sections 2 and 4 of the Labour Relations Act, section 4 of the Fair Administrative Action Act No 4 of 2015, and article 41 of the Constitution. The 1st Schedule to the Labour Relations Act, does not require definition of membership of a Trade Union, to be given in its Constitution.

13. The respondent filed a replying affidavit, sworn on April 15, 2022. She agrees with the Appellants, on the history of the application made for registration by the Appellants before her. She confirms that following objection made by COTU[K], she sought the advice of the National Labour Board, who advised against registration. She reiterates that the scope of representation is confusing, because it includes the DPP. The Constitution of the proposed Union does not demarcate the line between an ‘Employee’ and an ‘Employer.’ The respondent invokes E&LRC Petition No E044 of 2021, Halima Adan Ahmed v Seth Panyako & Kenya Union of Nurses & 2 Others, which held that, the Industrial Relations Charter provides for levels of unionization of Employees, prohibiting unionization of certain categories of Employees, by virtue of their positions in the Employer’s Organization. The respondent states that she discharged her mandate fairly and legally.

14. Parties agreed to have the appeal considered on the strength of their documents, pleadings, affidavits, and submissions. The submissions were confirmed as filed and exchanged, at the last mention before the court, on July 20, 2022.

15. The issues in dispute are: whether the appellants were denied registration fairly and legally; and whether the court should reverse the decision of the respondent, directing that she accords the appellants registration.

The Court Find: 16. It is the common position of the parties that the appellants, public prosecutors working for the ODPP, met and resolved to register their Trade Union, KNUPP.

17. Supportive documents necessary in the process of registration, under the Labour Relations Act are exhibited and are not disputed. They include: minutes of the meeting where the appellants and their colleagues resolved to establish and register their Trade Union; copy of the Constitution; register of attendees in the meeting held on March 31, 2021; list of officials; and list of the applicants.

18. Other documents originating from the respondent, necessary in the process of registration, exhibited by the parties include: letter from the respondent advising the Appellants to adjust their constitution; invitation of objection by the respondent vide Standard Newspaper of July 19, 2021 and Gazette Notice of July 23, 2021; objection by COTU [K]; respondent’s letter advising on engagement of the National Labour Board; and Form D, which is a Notification of Refusal of Registration.

19. The appellants, are Lawyers. They represent a larger group of Lawyers- about 66 including the appellants- going by the minutes of their meeting held on March 31, 2021. They are all Public Prosecutors, working under the ODPP.

20. The court does not agree with COTU [K], that the Appellants should be denied registration, because there are many Trade Unions representing different trades in the Public Service. The Objector did not state if any of these allegedly multiple Trade Unions, represent the interests sought to be represented by KNUPP. COTU [K] did not state whether there is a community of interests, between the Appellant and the membership of any of the alleged multiple Trade Unions in the Public Service. Which Union in the Public Service Sector, in the mind of COTU[K], represents Public Prosecutors, and is able to articulate their rights and interests, which are unique to them as Lawyers serving in the Public Service?

21. In the mind of the court, reading through the pleadings, KNUPP is a specialist Trade Union, with the object of advancing the rights and interests of a specialist group of Lawyers, which cannot be lumped together with other Public Service Trade Unions.

22. Secondly, COTU [K] and the respondent, hold that the appellants, are Managers and not eligible to unionization. The respondent invokes the case of Halima Adan Ahmed v Seth Panyako & others [cited above] in support of this proposition.

23. The submission has no merit. The ODPP is an Organization established under article 157 of the Constitution, and Office of the Director of Public Prosecutions Act, 2013.

24. The ODPP has an organogram. It has a Management Team, led by the Director of Public Prosecutions, Secretary Prosecution Services and other Deputy Directors in different Directorates. It has an Executive Secretariat, manned by various Managers.

25. KNUPP does not propose to recruit the Director, or any of his Deputy. It does not propose to recruit any Management Staff. The law does not require that the constitution of Trade Union goes into drawing the line between who is Unionisable and who is in Management. The Labour Relations Act defines Unionisable Employee as an Employee who is eligible for membership of a Trade Union. The line is elaborated in the Industrial Relations Charter, as cited in Halima Adan Ahmed v Seth Panyako & Others. Prohibited categories of Employees are those who by virtue of their positions in the Organization, have authority to hire, transfer, appraise, suspend, promote, discipline or handle grievances. The appellants are not within the Management of the ODPP. They have no decisional control of the ODPP, under the ODPP Act. They are Employees and not Managers or Leaders in the Organization, as alleged by COTU [K] in its objection, and by the respondent in her Notification of Refusal to register.

26. The respondent ought to have referred to the ODPP Act, to see that the Organization has management structures, with clearly defined responsibilities between Management and Employees. The Management and the Advisory Board exercise decisional control of the ODPP. The Board deals with recruitment, promotion, discipline of staff and any other matters referred to the Board by the Director. None of the appellants exercises decisional control, or management prerogatives, in the ODPP. It is not conceivable that the appellants shall recruit Mr Noordin Haji, the DPP, as one of their members, on account of him being a Public Prosecutor, as defined in KNUPP constitution. The ODPP Act places him in Management. There is no merit in the submission by the respondent, that the constitution of KNUPP blurs the line between Management and Unionisable Employees. The constitution is not to be read in a vacuum. The ODPP has an organogram based on its constitutive legislation, which clarifies the lines of demarcation. The Industrial Relations Charter gives guidance, on who is Management Staff and who is Unionisable Staff. The guiding principles need not be restated in any Trade Union’s Constitution, to validate that Trade Union’s claim for registration.

27. It is noted that the respondent requested the appellants, on receiving their application, that the appellants amend their Constitution to meet certain statutory standards. The appellants complied and submitted an amended constitution. There was no requirement by the Respondent for additional amendment. If there was need for further amendment, was it not prudent for the respondent to advise the appellants to make further amendment, instead of the outright rejection of registration? Trade Union constitutions are routinely amended, in line with the respondent’s statutory functions, on regulation of Trade Unions. Why extend the debate on registration to the National Labour Board?

28. The respondent referred the appellants’ application to the National Labour Board, where COTU [K], which had presented the sole objection on registration, looms large. The National Board as expected, advised against registration.

29. The involvement of the National Labour Board, in the process of registration of Trade Unions, was the subject of this court’s Judgment in Kenya Concrete, Structural, Ceramic Tiles, Wood Plys and Interior Designs Workers Union v Registrar of Trade Unions & another [2013] eKLR.

30. The Registrar had declined registration of Kenya Concrete Union, upon the advice of the National Labour Board. The court observed that the National Labour Board is composed of established players in the Trade Union Movement, and this representation leads to suppression of registration of new Trade Unions. There are vested interests in the National Labour Board, working against freedom of association. It was held that while section 19 of the Labour Relations Act and section 31[3] of the Labour Institutions Act, 2007, require the Registrar of Trade Unions to act on the advice of National Labour Board, section 31[1] of the Labour Institutions Act, states that there shall be a Registrar of Trade Unions, who shall be responsible for the registration of Trade Unions.

31. Ultimately the role of registration and regulation of Trade Unions vests with the Registrar. She owns the decision to register or not to register. This is why proceedings on refusal to register, are initiated in court against her, and not the National Labour Board. She is not an agent of the National Labour Board. She must exercise her discretion judiciously as she did, when she advised the appellants to amend their constitution. The Law does not intend that registration of Trade Unions is done by the National Labour Board. The Law does not intend that the role of the respondent in registration of Trade Unions, is reduced to rubber-stamping decisions of the National Labour Board.

32. It is clear that COTU[K], was the sole objector to registration of KNUPP. COTU[K] ubiquitously sat in the National Labour Board, rendering any advice given to the respondent by that Board, on registration of KNUPP, as worthless as a wooden frying pan.

33. The objection by COTU[K], that registration of KNUPP amounts to registration of a splinter Trade Union, which would weaken existing Trade Unions is inexact. Is KNUPP a splinter Trade Union, and from which Union has it fragmented? Splinter Unions traditionally are formed in Kenya, when disagreeing Trade Union Officials, mostly upon electoral defeat, move on to register their own Trade Union. Splinter Unions are offshoots of existing Trade Unions. COTU [K] did not specify from which Trade Union, KNUPP broke away. There is no evidence that there is another Union, which represents Public Prosecutors.

34. The court agrees that the appellants’ constitutional rights and freedoms, under articles 36, 41, and 47 of the Constitution were abused. They were denied their rights and freedoms under section 4 of the Labour Relations Act.

35. In Industrial Court Appeal No 1 of 2010, Patrick Olenda & 6 others v the Registrar of Trade Unions, the court held that the intention of the Constitution of Kenya is to advance the rights and fundamental freedoms of Employees, rather than highlight the limitations in exercise of those rights and freedoms. The reasons advanced by the respondent in declining registration, as advised by the National Labour Board, and argued by COTU [K], highlight limitations in exercise of constitutional rights and freedoms.

36. There is no reason whatsoever why the appellants, who are professionals in the Public Service, with an identifiable community of interests, should be denied the right and freedom to associate. These are Lawyers in a specialized area, of Public Prosecution. They cannot be lumped with other Public Service Trade Unions, as COTU [K] seems to suggest. No such other Public Service Trade Union in any event, has emerged to claim representation of their area. Other professionals in the Public Service have their Trade Unions, unique to their areas of operation. The court does not see why the Appellants should be denied registration of their Trade Union. No Trade Union emerged to claim it represents Public Prosecutors, when the respondent invited objections. It was left to COTU[K] which is a federation of Trade Unions, to raise an imprecise objection. There was no evidence availed to the respondent, or the National Labour Board, presented before this court, to show that the Public Prosecutors’ interests are sufficiently or substantially represented by any other Trade Union, which is already registered.

37. Public Prosecutors, like other public officers, are entitled to come together, and have the ability to negotiate with their Management from a position of strength, on a broad range of workplace and social issues. The Constitution of Kenya and the Labour Relations Act, grant them the rights and freedoms to associate, and to act in combination. They must be facilitated by the Registrar of Trade Unions, in registration of their Trade Union, so that they can effectively engage with their Management [and the Advisory Board through Management], concerning labour relations in general, fair labour practices and their specific terms and conditions of service.

It is Ordered: -a.The decision by the Registrar of Trade Unions, communicated to the appellants through Form D, dated October 25, 2021 is hereby quashed.b.The Registrar of Trade Unions shall immediately and unconditionally, register the appellant’s Trade Union, Kenya National Union of Public Prosecutors KNUPP, issue the Certificate of Registration, and enter its name in the Register of Registered Trade Unions.c.No order on the costs.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 29TH DAY OF SEPTEMBER, 2022. JAMES RIKAJUDGE