https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2310

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC APPEAL NO. E164 OF 2025** *(Before D. K. N. Marete)* **CALVINCE OKUMU……………………………………………..……1ST APPELLANT** **JAFFARY SAMIA YUSUF……………………………………………2ND APPELLANT** VERSUS **REGISTRAR OF TRADE UNIONS..……………………………………RESPONDENT** **JUDGMENT** This matter was originated by way of a Memorandum of Appeal and a supporting affidavit of Calvince Okumu dated 24th May, 2025. It is an appeal under Section 30 of the Labour Relations Act, 2007 against the decision of the Registrar of Trade Unions communicated by letter dated 10th April, 2025 rejecting the Appellants’ application for a promotional certificate for the proposed Digital Boda Drivers and Deliveries Union (DBDDU) under Section 12 of the Labour Relations Act, 2007. The Memorandum of Appeal sets out the following grounds: 1. The Registrar erred in law and fact in refusing, declining and/or rejecting to issue a certificate to the Appellants under Section 12 of the Labour Relations Act. 2. The Registrar’s reasons for rejecting the Appellants’ application were neither factually nor legally sound nor valid. 3. The Registrar erred in relying on Section 14(1)(d) to reject the Appellants’ application yet the Appellants were fully compliant with the requirements of Section 12. 4. The Registrar’s decision refusing to grant the Appellants a certificate under Section 12 of the Labour Relations Act infringes the Appellants’ right to form a trade union and to participate in the activities of a trade union under Article 41(2)(c) of the Constitution. 5. The Registrar’s refusal to grant the Appellants a certificate under Section 12 violates the Appellants’ right to fair administrative action under Article 47 of the Constitution. The Appellants pray that the appeal be allowed, that a declaration issue that the Appellants have a constitutional right to form and participate in the activities or promotion of the proposed Digital Boda Drivers and Deliveries Union, that the Registrar’s decision of 10th April 2025 be set aside, that the Registrar be directed to issue the promotional certificate within 14 days, that the proposed union be allowed to continue with recruitment and registration activities, and that the costs of the appeal be awarded to the Appellants. The Appellants’ case, as set out in their written submissions, is that by dint of Section 12(1) of the Labour Relations Act, 2007 any two or more persons may apply to the Registrar for a certificate permitting them to undertake promotional activities towards the establishment of a trade union, and that the Registrar is obliged to issue such a certificate unless one of the prescribed grounds for refusal is established. It is the Appellants’ submission that Section 14(1)(d), which bars registration where an existing trade union adequately represents the employees in question, applies only at the registration stage governed by Section 14 and not at the promotional stage governed by Section 12. The Appellants further submit that even if Section 14(1)(d) were properly invoked, the Respondent failed to demonstrate that any existing union adequately represents digital platform-based boda boda and delivery workers, who occupy a distinct and novel sector not adequately captured by any existing union’s mandate. Finally, the Appellants submit that the Respondent’s decision offends their right to freedom of association under Articles 36 and 41(2)(c) of the Constitution and their right to fair administrative action under Article 47 of the Constitution of Kenya, 2010. The Respondent’s case, as set out in the replying affidavit of Ms. Ann K. Kanake, Acting Registrar of Trade Unions, sworn on 16th June, 2025 is that the rejection of the Appellants’ application was lawful, that the transport sector is already served by multiple registered trade unions capable of representing digital platform workers. Moreover, the issuance of a certificate for a new union would fragment representation in a sector where adequate representation already exists. The Respondent submits that Section 31(3) of the Labour Institutions Act, 2007 obliges the Registrar to act in accordance with any advice of the National Labour Board and that the Board’s advice, having regard to existing representation in the sector, informed the decision to reject the application. The Respondent relies on **Kenya National Union of Nurses v Registrar of Trade Unions & Another [2013] eKLR**, **Kenya Revenue Authority & 2 Others v Registrar of Trade Unions & 3 Others [2016] KEELRC 173 (KLR)** and the decision in **Kenya Guards & Allied Workers Union v Security Guards & Related Employees Union & Another [2006] eKLR** on the public interest in orderly regulation and the avoidance of fragmentation of union representation. The Respondent prays that the appeal be dismissed with costs. The issues for determination are: 1. Whether this appeal was instituted within the thirty-day period prescribed by Section 30 of the Labour Relations Act, 2007. 2. Whether the Respondent erred in law and fact in applying Section 14(1)(d) at the promotional certificate stage governed by Section 12 of the Labour Relations Act, 2007. 3. Whether the Respondent’s finding that existing unions adequately represent the Appellants’ proposed constituency was sufficiently reasoned and evidenced. 4. Whether the Respondent’s decision violated the Appellants’ rights under Articles 36, 41(2)(c) and 47 of the Constitution. 5. Whether the balance of public interest and individual rights favours the grant of the certificate. 6. What orders follow? The 1st issue for determination is whether this appeal was instituted within the thirty-day period prescribed by Section 30 of the Labour Relations Act, 2007. Before considering the merits, this court must satisfy itself that it has jurisdiction to entertain this appeal. Section 30 of the Labour Relations Act, 2007 provides that any person aggrieved by a decision of the Registrar made under the Act may appeal to this court within thirty days of the decision. The Respondent’s decision is communicated in her letter of 10th April, 2025. The Memorandum of Appeal and the supporting affidavit of Calvince Okumu are dated 24th May, 2025 a date that would have fallen within the thirty-day period if computed from 10th April, 2025. However, computing thirty days from 10th April, 2025 gives a deadline of 10th May, 2025. The filing date shown on the record is 20th February, 2026 a date some nine months after the decision, which is plainly out of time. No application for leave to appeal out of time and no explanation for the delay appears on the record. This court is conscious that this point was not raised by either party, and that fairness ordinarily favours affording parties an opportunity to address a jurisdictional point before it is acted upon. However, jurisdiction is a threshold question that the court must determine of its own motion and the facts bearing on it are entirely on the face of the record, leaving no room for factual dispute. The appeal was not instituted within the prescribed thirty days. This Court accordingly has no jurisdiction to entertain it on the merits. The 2nd through 5th issues fall on the merits and, given the finding on jurisdiction, do not strictly arise. However, given the constitutional and public-interest dimensions of the questions raised, and the novelty of the digital platform boda boda sector as a constituency for union representation, this court records the following observations by way of *obiter dicta*, expressly not as findings, to guide the parties should they elect to pursue the matter by an appropriate application. The Labour Relations Act, 2007 creates a two-stage process for the formation of a trade union. The first stage, governed by Section 12, is the promotional stage: two or more persons may apply for a certificate permitting them to undertake lawful promotional activities towards the establishment of a union. Section 12 does not in terms direct the Registrar to consider whether an existing union adequately represents the proposed constituency, and the grounds for refusal at the promotional stage are not spelled out in Section 12 itself. Section 14, by contrast, governs the registration of a trade union proper, an application for which is ordinarily made after recruitment and not less than six months after the promotional certificate is issued. Section 14(1)(d) provides that the Registrar may refuse registration where a registered trade union already adequately represents the employees concerned. The plain reading of the Act, and the construction adopted in **Dominic Ngolo & 7 Others v Registrar of Trade Unions [2016] eKLR** (Appeal 4 of 2016, ELRC), is that Section 14(1)(d) is a ground for refusing registration, not a ground for refusing a promotional certificate under Section 12. Applying a registration-stage criterion at the promotional stage conflates two distinct statutory thresholds and would, if consistently applied, effectively prevent workers in any sector served by an existing union from ever taking the preliminary step of exploring whether a new union is warranted. The Registrar’s invocation of Section 14(1)(d) to refuse a Section 12 certificate is, on this reading, legally questionable. Article 36 as read with Article 41(2)(c) of the Constitution guarantees every worker the right to form, join and participate in trade union activities. That right is not absolute and may be limited by law to the extent justified under Article 24. However, the digital platform boda boda and delivery sector presents a genuinely novel employment and work model: workers are engaged through digital intermediaries, often with no clear employer-employee relationship with any single entity, and are unlikely to fall squarely within the mandates of existing unions designed for conventional transport workers. The Respondent’s finding that existing unions adequately represent this constituency was not particularised by reference to any specific union’s constitution, registered scope, or demonstrated capacity to organise and represent digital platform workers. A bare assertion of adequacy, unsupported by analysis of the proposed constituency’s distinct characteristics, may not meet the standard of reasons required by Article 47(1) and the Fair Administrative Action Act, No. 4 of 2015( Chapter 7L) Laws of Kenya. These observations are recorded for the assistance of the parties only. They do not constitute findings of this court and do not bind any future court or tribunal called upon to determine these questions on the merits after a properly instituted appeal. I am therefore inclined to strike out the appeal for want of jurisdiction and order as follows; 1. The appeal is hereby struck out for want of jurisdiction, having been filed outside the thirty-day period prescribed by Section 30 of the Labour Relations Act, 2007. 2. For the avoidance of doubt, and without prejudice to order (i) above, this court records its *obiter dicta* observations on the merits as set out in the body of this judgment. 3. These observations do not constitute findings and do not bind any future court or tribunal. 4. Each party shall bear its own costs of the appeal. Delivered, dated and signed this **31st** day of **July** 2026. **D. K. Njagi Marete** **JUDGE** **Appearances:** 1. Miss Odhiambo instructed by Orego & Odhiambo Advocates for the Appellants. 2. Mr. Ernest Kioko instructed by State Law office for the Respondent.