https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1565

Mwenda & another (Being Promoters of the Kenya National Union of Health Records and Information Managers – KNUHRIM) v Registrar of Trade Unions & another; Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Allied Workers (Interested Party) (Employment and Labour Relations Appeal E142 of 2025) [2026] KEELRC 1565 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1565 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Appeal E142 of 2025 NJ Abuodha, J June 5, 2026 Between Ken Mwenda 1st Appellant Tracy Nkirote 2nd Appellant Being Promoters of the Kenya National Union of Health Records and Information Managers – KNUHRIM and The Registrar Of Trade Unions 1st Respondent The National Labour Board 2nd Respondent and Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Allied Workers Interested Party Judgment 1.Through the Memorandum of Appeal dated 8th May 2025, the Appellants approached this court fronting 11 grounds of appeal challenging the decision of the Respondents to refuse to registration of Kenya National Union of Health Records and Information Managers as discriminatory against Article 27 of the Constitution and against their right of freedom of association. That their interest could not adequately be represented by the Interested Party union which was distinct from the proposed union. 2.The Appellants sought for an order of setting aside of the Respondents decision of 25th April,2025 declining the application by the Appellants for the registration of their union on the basis of an existence of another Union the Interested Party herein and an order to register the said union. 3.The 1st Respondent in reply to the Appeal filed the Replying Affidavit sworn on 23rd June,2025 by Ann Kanake the acting registrar of trade unions. The 1st Respondent averred as follows: -a.The Appellants applied for registration for issuance of a promotion certificate for a proposed union under the name Kenya National union of Health Records and Information Managers (KNUHRIM) via a letter dated 5th April,2024 and the same was allowed on 26th August,2024.b.The Appellants made an application to register the said union and as required the notice to register was gazetted in the Kenya Gazette as gazette No. 15006 and published in two local dailies so as to put the public on notice and a chance to object the registration of the trade union.c.That the office received an objection in writing from Kenya Union of Domestic, Hotels. Educational Institutions and Hospital Workers (KEDHEIHA WORKERS) and the same were forwarded to the Appellants vide the letter dated 25th November, 2024.d.That the 1st Respondent acted within her mandate under section 19 of the Labour Relations Act. That 1st Respondent presented the application for registration of the said union for scrutinizing by the National Labour Board who scrutinized it and the application did not find merit as there are already existing trade unions that sufficiently represent the interests in which they were seeking registration.e.The 2nd Respondent advised the Appellants of the outcome of the deliberations citing the application as unsuccessful due to existence of other unions such as KUDHEIHA and Kenya Environmental Health and Public Health Practitioners Union which were sufficiently representative of the sector of workers the applicants were seeking to represent.f.That the Appellants have refused to join the existing registered trade unions that sufficiently represent their interest and registering a similar trade union would lead to inter union rivalry and wrangles due to scrambling of members which does not augur well for industrial peace and harmony.g.That having many unions in the same sector also makes it difficult for collective bargaining and obtaining recognition agreements from employers. That employers would take advantage of workers when there is inter union rivalry and wrangles.h.That courts are of the view that among the reasons for refusal of registration is where there is another trade union sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration as provided under section 14(1)(d) of the Labour act. That the same was pronounced by the Supreme Court in Kenya Plantation & Agricultural Workers Union v Omulama & 9 others Represented by its promoters (Petition 4 of 2018). 4.The Interested Party also filed its Replying Affidavit in reply to the appeal sworn on 15th July, 2025 by the 1st Deputy Secretary General of the 1st Interested Party. The Interested Party in essence averred that:a.The proposed union sought to represent members in health sector handling records and information who are adequately represented by its union and other unions like the Union of Kenya Civil Savants (UKUS), Kenya County Government Workers Union and Kenya Environmental Health and Public Health Practitioner’s union.b.That section 14 of the Labour Act ought to be followed and the promoters did not prove of any meeting that was held by fifty members and decided to register a trade union.c.That contrary to the promoters’ assertion and claim that records, information managers and Technicians are not represented by the 1st Interested Party was totally false and misleading as the career Guidelines for these Job categories and descriptions are there as proof.d.That the rights under Article 36 and 41 of the Constitution were not absolute could be limited under Article 24 and there was no breach of the promoters’ rights under Article 41 while relying on a number of case laws. 5.The Appeal was disposed of by written submissions. Appellants’ Submissions 6.The Appellants through their Advocates AKO Advocates filed written submissions dated 8th August, 2025. 7.On the issue of whether the grounds advanced by the Registrar of Trade Unions to refuse registration of the Appellant are valid and reasonable counsel urged the court to revert to the four corners of Form D, the notification by the 1st Respondent to the Appellants of the refusal to register the proposed union to represent Health Records and Information Managers and the four reasons contained in the notification for the decision namely that: -i.The Interested party represent adequately the interest of Health Records and Information Managers.ii.The persons employed as Health Records and Information Managers falls squarely under the sector already represented by the Interested party (KUDHEIHA).iii.There is no evidence adduced to show that the Appellants suffer from any substantial.iv.The National Labour Board did not approve the application for registration. 8.Counsel submitted that serious allegations have been made by Respondents and the Interested Party regarding the Appellants’ rights to be registered as a trade union. That the Appellants duly complied with the requirements for registration, until when the proposed union was gazetted for registration, was when an objection was raised by the Interested Party. That the proposed union are Health Records and Information Managers and not General Records and Information Managers as alleged by the Interested Party. 9.It was submitted that a majority of the Appellants (Health Records and Information Managers) are not employees of Kenyatta National Hospital therefore not subjected to said Hospital’s Career Guidelines where the Interested Party represent employees from job category KNH.14 to KNH 6. Not all KNUHRIM personals works at Kenyatta National Hospital to be bound by such rules and regulations between the Interested Party and KNH and more specifically the Memorandum of Agreement Between KNH and KUDHEIHA Workers as alleged by the Interested Party. Not all KNUHRIM professionals are bound under this agreement. 10.It was submitted that where any health records and information officers or managers are purportedly paying agency fees to the Interested Party such as at the Kenyatta National Hospital (KNH), the same is being done without their consent or membership because the said health records and information managers from these institutions have never applied for membership to KUDHEIHA, nor have they signed any membership forms as required under Section 48 of the Labour Relations Act. 11.Further it was submitted that Agency fees have therefore been irregularly deducted from the salaries of these professionals without proper consent or lawful registration as union members which is a gross violation of their labour rights and is further evidence that there is no effective or lawful representation in place. The Interested Party has also not disclosed, how many of KNUHRIM professionals work at KNH and or are registered with it to allege that all the Appellants member’s rights and interests are well represented by it. That right to membership or to belong to a union, should not be coerced by the law, but should be voluntary. 12.Counsel submitted that it was therefore not true as alleged by the Respondents and the Interested Party that the Appellants refused to join the existing registered trade unions, as no proof has been availed by the Interested Party and or the Respondents that any of the Appellants related members refused to join the existing unions. Counsel relied on Articles 36 and 41 of the Constitution on their rights to form, join and participate in activities of an association. That the two unions are distinct with different objectives and no confusion will be caused. 13.Counsel relied on Section 14(2) of the Labour Relations Act, to submit that the Registrar has the discretion to register a trade union even where there exists another union if the registrar is satisfied that the applicant union will sufficiently represent the interests sought to be protected and that the existing union does not adequa tely carter for the applicant’s targeted members. That as much as the Interested Party (KUDHEIHA) is one of the oldest Trade Unions in Kenya with a colossal area of representation, there can be no justification for such a trade union to control, or wish to control, the entire sectors of the economy especially in these times and in light of the 2010 Constitution. 14.Counsel submitted that the functions of the intended union as seen in the attached Health Records and Information Managers scheme of service 2018 approved by the Public Service Commission, establishes grading structure, job descriptions and specifications at all levels within the grading and further delineated by the Health Records and Information Managers’ Scope of practice published by the Health Records and Information Managers Board. 15.Further counsel denied that the reasons advanced by the 1st Respondent to refuse it registration are valid and cited the decision of this Court in Seth Panyako and Others –vs- Attorney General [2013] eKLR, in which the Court rejected the mundane reasons advanced by the Registrar of Trade unions to refuse to register the Kenya National Union of Nurses, and went ahead to authorize its registration pursuant to an appeal filed in terms of Section 30 of Labour Relations Act. 16.Counsel submitted that it has been demonstrated by the Appellants that its intended 4,476 members work in more than one sector. In fact, the Health Records and Information Managers work in the health sector across the Republic of Kenya, in private and public sector. These members are sector specific and their interest cannot be adequately covered by the Interested Party. That the 1st Respondent and the Interested Party has also failed to demonstrate that any of the 4,476 intended members of the interim union are members of the Interested Party or are catered for with by an employer and or group of employers either in the public or private sector. 17.It was submitted that it is not lost to the Court that this Court has already authorized registration of various unions in the health sector on the basis of their respective areas of professional specialization and operations. That this has become the rule rather than the exception going by the authorities provided by the appellants in this matter. Counsel relied on among others the case of Appeal No. 7 of 2011, David Benedict Omulama & 8 Others –vs- Registrar of Trade Unions and Another [2014] eKLR, where courts allowed registration of trade union and ordered the registrar to register as such while interpreting the provisions of Section 14 of the Labour Act as well as limitation of the rights under Articles 36 and 41 of the Constitution. 18.Counsel submitted that the Health Records and Information Managers are a special health cadre that perform very distinct roles both in county and National Government as well as the Private Sector and are regulated by the Health Records and Information Managers Act. That the 1st Respondent cannot therefore conflate the Kenya Union of Domestic, Hotels, Educational Institutions Workers (KUDHEIHA) with Kenya National Union of Health Records and Information Managers (KNUHRIM) when the two have separate objectives. 19.Counsel submitted that the Appeal herein being meritorious, that this Honourable Court be pleased to allow the same, set aside the decision of the Registrar and direct the registration of the Kenya National Union of Heath Records and Information Managers forthwith. Respondents’ Submissions 20.The Respondents’ through E.S Karbolo a state counsel at the office of the Attorney General & Department of Justice filed written submissions dated 21st January, 2026. 21.On the issue of whether the 1st Respondent declined to register the applicant union on ground that there are already existing trade unions that are sufficiently representative of the interest of said union counsel submitted that the Registrar of Trade Unions has the authority under the Labour Relations Act to refuse to register a trade union after giving sufficient reasons thereto and as stipulated under sections 19 and 20 of the said Act. 22.Counsel submitted that the 1st Respondent proceeded to act within its mandate under section 14 and section 19 of the Labour Relations Act and declined to register said union. Further, the 1st Respondent proceeded to present the Appellants application to the National Labour Board for scrutiny from where the Labour Board after scrutinizing said application did not find merit in it. The Respondent then proceeded to decline the said registration and communicated the same to the Appellants as stipulated under the law. 23.Counsel urged the Court to be persuaded by the finding in Ongera & 2 others v Registrar of Trade Unions & another [2024] KECA 108 (KLR) where the Honourable court upheld the Registrar's decision to decline to register the applicant union on ground that there are already existing trade unions that are sufficiently representative of the interest of said union. 24.Counsel also relied on another case of similar facts, Kenya Plantation & Agricultural Workers’ Union v Kenya Export Floriculture, Horticulture and Allied Workers’ Union (KEFTHAU) Represented by Its Promoters: David Benedict Omulama & 9 others [2020] eKLR the Honourable court upheld the Registrar’s decision to decline the registration of the union on ground that there are already existing trade unions that are sufficiently representative of the interest of said union. 25.Counsel concluded that Sections 19 and 20 of the Labour Relations Act as well as Section 14 of the Act justified the Registrar of Trade Unions’ decision to decline the registration of the union. Interested Party’s Submissions 26.The Interested Party through its 1st Deputy Secretary General Samson Kioko filed its written submissions dated 25th August, 2025. 27.The submissions echoed what was averred in the Interested Party’s replying affidavit. It was submitted that there was no breach of Article 41 of the Constitution and reliance was placed on among others the case of Malindi ELRC Appeal No. 1 of 2019, the Promoters of Kenya Salt Workers Union (Lawrence Majali & 5 Others vs the Registrar of the Trade Unions which held that rights under Articles 36 and 41 were not absolute and could be restricted under Article 24 of the Constitution. That their interests were sufficiently represented by an existing trade union and creating a rival union would cause confusion in the area the Appellants intended to represent. 28.It was submitted that there was no evidence that the employees were coerced in paying the union dues as they voluntarily joined the membership. That there was no evidence presented to show the employees in question were deducted agency fees without their consent while section 49 of the Labour Relations Act governs the issue of over deduction of agency fees. That the Appellants despite mentioning Kenyatta Hospital they never showed who their employers were. 29.It was submitted that the case laws presented by the Appellants do not add value to this court as the one for nurses the situation has not changed as the nurses keep on going on strikes causing industrial unrest and the Appeal 7 of 2011 and No 9 of 2016 have since been overtaken by Appeal 1 of 2019 which supports the Interested Party’s submissions. Analysis 30.The court has reviewed and considered the pleadings and submissions by the parties and the authorities relied herein is of the view that this is a single-issue Appeal which is: _a.Whether the Respondents’ refusal to register the proposed union (Kenya National Union of Health Records and Information Managers (KNUHRIM) was justified and lawful. 31.The Appellants were issued with a certificate to establish a trade union on 26th August, 2024 as per dictates of section 12 of the Labour Relations Act and made an application for registration of the same under section 14 of the act. The 1st Respondent acted upon her mandate and gazetted the same for objections where it received an objection from the Interested Party which was forwarded to the Appellants on 25th November, 2024. The 1st Respondent sent the application to the 2nd Respondent for scrutiny who also found the application without merit. 32.The 1st Respondent therefore declined to register the said union and communicated the decision to the Appellants through the FORM D vide the letter dated 24th April,2025 giving the reasons for the refusal which basically were that the Interested Party and other existing unions represented sufficiently the interests of the Appellants and that the 2nd Respondent refused to approve of their registration. The Appellants were aggrieved by this decline to register the trade union and approached this court. 33.Section 14 (1)(d) (i) provides as follows: -14.(1)A trade union may apply for registration if―(d)no other trade union already registered is-(i)in the case of a trade union of employers or The Labour Relations Act, 2007 18 of employees, sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration. 34.Section 20 of the Act provides as follows:-If the Registrar is not satisfied that a trade union, employers organisation or federation meets the requirements for registration and refuses the application for registration, the Registrar shall advise the trade union, employers' organisation or federation of the reasons for that refusal in Form D set out in the Second Schedule. 35.The Appellants alleged that the proposed union would govern Health Records and Information Managers and not general records as governed by the Interested Party. That the two unions would be distinct with different objectives. That its membership would be health records and Information managers in public and private sectors. This court has looked at the Constitution of the proposed trade union and the members who attended the General meeting were merely 22 members. 36.This court is of the view that in as much as the Appellants claimed there were over 4,000 members from the attendance the members are few and as seen under section 14 the existing unions sufficiently represent the interests of the Appellants herein. The Appellants never illustrated if there was any sufficient need for another union when there are other unions and their members were paying union dues in existing unions without any complaint. In fact no member has complained that they were coerced in to membership and their agency fees was deducted unlawfully. 37.This court is convinced that the Registrar acted within her mandate under section 19 and 20 by seeking the opinion of the 2nd Respondent who found the application without merit and the 1st Respondent communicated the refusal to register as provided for under section 20 of the act. 38.ThThe issueThis court notes that whereas 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 it 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 as follows: -6.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. 39.The Appellants did not illustrate what the proposed union will deal with which is not sufficiently represented by the existing unions. The same position was reached by the Supreme court in Kenya Plantation & Agricultural Workers’ Union v Omulama & 9 others (Petition 4 of 2018) [2020] KESC 59 (KLR) (23 January 2020) (Judgment) which held that: _It is clear in our mind that once an application for registration of a trade union has been made and the same is compliant with the aforesaid sections and the Constitution, the Registrar of Trade Unions has no choice but to register the same. The only reason for refusal of registration is where there is another trade union sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration as provided under section 14(1)(d)of the same Act. It is not disputed that the 1st to 9th respondents’ trade union met the criteria for registration as set out in sections 12, 13 and 14. The only reason the appellant challenged the registration of the respondents’ union was that it contravened section 14(1)(d) of the Labour Relations Act. We will therefore limit ourselves to the said section. 40.This court notes that even though the registrar had given the Appellants a certificate to promote the trade union the trade union could not be registered if there existed other unions representing the interests of the Appellants. The Appellants had a duty to illustrate their interest will not be represented by the existing unions as observed by this court in the case above of Charles Salano to avoid causing duplicity of unions, cause union rivalry and lack of peace and cohesion which will be against the interests of workers. The court held as follows: -7.Further, the interested party has sufficiently shown that by its constitution it represents supermarkets workers and has indeed previously represented the promoters of the proposed union against their employer Nakumatt. It therefore behove the appellant to demonstrate that over the years supermarket workers have become so specialized or disadvantaged to a point where it may reasonably be said that the interested party no longer sufficiently represents them. Whereas no union can claim monopoly over workers representation, for the sake of order and harmony in industrial relations, duplicity in representation should be avoided. 41.Whereas The Appellants without evidence of which scope of members their proposed union seeks to represent who are not represented by the unions in existence the court finds that the Registrar was justified in refusing to register the proposed trade union to avoid the duplicity of unions which would cause unnecessary industrial rivalry. The refusal by the registrar was lawful and fair in the circumstances. 42.The Appeal is therefore found without merit is hereby dismissed with no orders as to costs. 43.It is so ordered. DATED AT NAIROBI THIS 5TH DAY OF JUNE 2026DELIVERED VIRTUALLY THIS 5TH DAY OF JUNE 2026ABUODHA NELSON JORUMPRESIDING JUDGE-APPEALS DIVISION