Olela & another (Suing as promoters, interim officials and applicants for the registration of the proposed The Kenya Busses & Allied Workers Union (TKBAWU)) v Registrar of Trade Unions (Appeal E032 of 2025) [2026] KEELRC 2250 (KLR) (30 July 2026) (Judgment)

Olela & another (Suing as promoters, interim officials and applicants for the registration of the proposed The Kenya Busses & Allied Workers Union (TKBAWU)) v Registrar of Trade Unions (Appeal E032 of 2025) [2026] KEELRC 2250 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2250 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E032 of 2025 K Ocharo, J July 30, 2026 Between Mikidadi Agira Olela 1st Appellant Philip Hoseya 2nd Appellant Suing as promoters, interim officials and applicants for the registration of the proposed The Kenya Busses & Allied Workers Union (TKBAWU) and Registrar of Trade Unions Respondent (Being an appeal under section 30 of the Labour Relations Act, Cap. 233, against the decision of the Registrar of Trade Unions contained in a letter dated 6th February, 2025, Ref. MLSP/TU/R/443, declining to register the proposed “Kenya Busses & Allied Workers Union (TKBAWU)”) Judgment I. Introduction 1.This is an appeal by Mikidadi Agira Olela and Philip Hoseya, suing as promoters and interim officials of, and applicants for the registration of, the proposed Kenya Busses & Allied Workers Union (TKBAWU) (“the Appellants”), against the decision of the Registrar of Trade Unions (“the Respondent”) contained in a letter dated 6th February, 2025, Ref. MLSP/TU/R/443, declining to register the proposed trade union. The appeal is brought under section 30 of the Labour Relations Act, Cap. 233 (“the Act”), which confers upon any person aggrieved by a decision of the Registrar made under the Act a right of appeal to this Court within thirty days of the decision. 2.The appeal raises, in a fairly narrow compass, an important question of principle concerning the manner in which the Registrar is to exercise the power, conferred by section 14(1)(d) of the Act, to decline registration of a proposed trade union on the ground that an existing registered trade union is already sufficiently representative of the interests the applicants seek to organise. It calls for this Court to examine, first, the constitutional and international-law foundations of the right to freedom of association and trade unionism; second, the competing and legitimate public interest in regulating the proliferation of trade unions within any one sector; third, the distinct statutory processes contemplated by sections 12 and 14 of the Act respectively, and the discrete considerations proper to each; and, finally, whether, on the material before the Registrar, the reasons given for declining registration were sound in law and in fact. II. Background 3.By a letter dated 28th January, 2025 addressed to the Registrar of Trade Unions, the 1st and 2nd Appellants, describing themselves as employees of Dreamline and Mash East Africa respectively — both operators of long-distance passenger bus services — and as promoters appointed by fellow employees “to champion the registration of the union as per the Labour Relations Act Section 12(2)”, sought the registration of a proposed trade union to be known as “The Kenya Busses & Allied Workers Union (TKBAWU)”. The letter recorded that the promoters' and their colleagues' efforts to join an existing trade union “have been unsuccessful due to lack of understanding of daily operation and our mode of payment-trip remuneration” — a reference, as I understand it, to the practice, common among long-distance bus operators, of remunerating drivers, conductors and turn-boys by reference to the trip undertaken rather than by a fixed periodic wage. 4.By a letter dated 6th February, 2025, Ref. MLSP/TU/R/443, signed by Ann K. Kanake, Ag. Registrar of Trade Unions, the Respondent declined the application. The material part of the letter reads:“Your attention is drawn to the provisions of section 14(1)(d) of the Labour Relations Act which provides that a trade union cannot be registered where there is another trade union already registered that is sufficiently representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration.Our records indicate that there already exist unions representing the group that you seek to represent as per your application namely; -1.Matatu Workers Union whose membership as per the Union's Constitution is open to any member who works in the matatu sector.2.Transport Workers Union whose membership is open to all members who work in the transport industries including public service transport.3.Public Transport Operators Union whose membership is open to all members who work in the public transport industry.It is the finding of this office that the above-mentioned unions are sufficiently representative of a substantial proportion of the whole or of a substantial proportion of the interests in which you have sought registration.It is therefore clear that you are seeking to represent the same sector that is currently covered/represented by the aforesaid unions.In the circumstances, your application is unsuccessful.” 5.Aggrieved, the Appellants, through the firm of J.O. Magolo & Company Advocates, filed a Memorandum of Appeal signed on 6th March, 2025 and lodged by e-filing on the same date — timeously, it being exactly thirty days from the date of the impugned decision — advancing six grounds of appeal, namely, that the Registrar erred in fact and law in declining registration (ground i); that the reasons given were unreasonable and invalid (ground ii); that the Registrar failed to distinguish bus workers from bus owners, and mistook an owners' union for a workers' union (ground iii); that the Registrar failed to distinguish matatus from buses as distinct units (ground iv); that the decision violates the Appellants' rights and fundamental freedoms, namely the freedom of association under Article 36(1) of the Constitution and the right to form, join and participate in the activities and programmes of a trade union (ground v); and that the impugned decision is not substantially representative of the interests of the intended members of the proposed union (ground vi). I note, without according it any weight in the disposal of the appeal, that the Memorandum of Appeal twice misdescribes the date of the impugned letter — as “1st Jan 2023” in its recital and as “1st Jan 2025” in the prayers — neither of which corresponds to the letter actually on record, dated 6th February, 2025; I treat this, as I am satisfied I properly may, as an immaterial slip of the pen, there being only one letter from the Respondent on this record capable of being the subject of the appeal. 6.The Appellants pray that the appeal be allowed; that the Respondent's letter declining registration be declared unlawful, null and void; that a mandatory injunction issue directing the Respondent forthwith to register the proposed trade union; that the Respondent be directed to issue a certificate of registration within seven days; and for costs of the appeal. 7.The Appellants filed written submissions in support of the appeal, elaborating the grounds set out in the Memorandum. No submissions, replying affidavit or other response appears on the record from the Respondent, who does not appear to have participated in the appeal beyond the record of the impugned decision itself. The Court has, notwithstanding the Respondent's non-participation, independently scrutinised the reasoning disclosed in the Respondent's own letter, that being the only basis upon which the decision under appeal can be tested. 8.The Appellants subsequently filed a Supplementary Record of Appeal comprising a notice of change of names of the proposed union's officials, dated 24th November, 2025, and a copy of the proposed union's constitution. I observe that the constitution exhibited refers to the proposed body as “The Kenya Bus Carriers Workers Union” rather than “The Kenya Busses & Allied Workers Union (TKBAWU)”, the name used throughout the application to the Respondent and in the pleadings in this appeal; the notice of change of officials likewise bears the variant name. It appears that the Appellants and their colleagues have continued, during the pendency of this appeal, to refine the identity and leadership of the proposed union, including adopting a formal constitution and settling on named substantive officials in place of the generic titles originally used. Nothing turns, for present purposes, on this evolution in nomenclature; the appeal remains concerned with the lawfulness of the Respondent's refusal, communicated on 6th February, 2025, to register the union then proposed, and I address, in my directions below, how this later development is to be accommodated upon the appeal succeeding. III. The Right to Freedom of Association and Trade Unionism: Constitutional, Statutory And International Foundations 9.It is necessary, before turning to the narrower question raised by this appeal, to restate the constitutional and international-law weight that attaches to the right the Appellants seek to exercise, since it is against that weight that the propriety of any administrative refusal to register a trade union must be measured. 10.Article 36(1) of the Constitution guarantees to every person the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind; Article 36(2) provides that a person shall not be compelled to join an association of any kind. Article 41, dealing specifically with labour relations, provides at sub-article (2) that every worker has the right to fair remuneration, to reasonable working conditions, to form, join or participate in the activities and programmes of a trade union, and to go on strike; sub-article (4) further guarantees to every trade union the right to determine its own administration, programmes and activities, to organise, and to form and join a federation. These provisions are given legislative effect by the Labour Relations Act, whose object, as declared in section 3, is to give effect to Article 41 of the Constitution and to foster sound labour relations through the protection and promotion of, among other things, freedom of association. 11.The importance of trade unions to the industrial and social order is not a merely rhetorical proposition; it lies at the very foundation of modern labour law. An individual worker, negotiating alone with an employer of vastly superior economic and organisational power, is structurally disadvantaged in securing fair terms and conditions of employment. Trade unions exist precisely to correct that imbalance: by aggregating the collective strength of workers, they enable meaningful negotiation over wages and conditions, give workers a voice in matters affecting their working lives, promote the orderly and lawful resolution of workplace disputes in place of unregulated industrial action, and serve as an indispensable institution of social dialogue between labour, capital and the State. It is for this reason that freedom of association in the labour context has consistently been treated, both domestically and internationally, not merely as one association right among many, but as what the International Labour Organisation (“ILO”) has described as an enabling right — a right whose enjoyment is a precondition for the effective exercise of other labour rights. 12.Kenya is a member State of the ILO and has ratified, among other instruments, the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Convention No. 87 provides, at Article 2, that workers, without distinction whatsoever, have the right to establish and to join organisations of their own choosing without previous authorisation; Article 3 guarantees such organisations the right to draw up their own constitutions and rules and to organise their administration and activities free of interference by public authorities liable to restrict that right or impede its lawful exercise; and Article 7 provides that the acquisition of legal personality by workers' organisations shall not be made subject to conditions of such a character as to restrict the application of the foregoing provisions. Convention No. 98 protects workers' organisations against acts of interference by employers or their agents. These commitments are reinforced at the universal level by Article 23(4) of the Universal Declaration of Human Rights and Article 8 of the International Covenant on Economic, Social and Cultural Rights, both of which recognise the right of everyone to form and join trade unions for the protection of their interests. By operation of Article 2(5) and (6) of the Constitution, the general rules of international law and the treaties Kenya has ratified form part of Kenyan law, and it is against this backdrop — a right of associational freedom fortified by both domestic constitutional guarantee and binding international obligation — that the exercise of the Registrar's statutory powers under the Act falls to be scrutinised. IV. The Regulation of the Number of Trade Unions Within A Sector: The Registrar's Role And The Necessary Balance 13.It would, however, be a mistake to read the foregoing as suggesting that the right to form a trade union is unqualified, or that the Act's registration regime, and the Registrar's gate-keeping role within it, serve no legitimate purpose. The unrestrained proliferation of trade unions within a single sector or occupational category carries real costs to the very workers such unions exist to serve: fragmentation of bargaining strength across multiple small unions, each too weak to negotiate effectively with employers of far greater scale; inter-union rivalry and demarcation disputes that divert energy from the advancement of workers' interests to contests over membership; and the risk that employers, faced with a multiplicity of unions each purporting to speak for the same workforce, are able to play one union against another to the detriment of all. It is precisely to guard against these dangers that the Act, through the Registrar, exercises a measure of oversight over the formation and registration of trade unions, including, under section 14(1)(d), the power to decline registration where an existing registered trade union is already sufficiently representative of the interests for which registration is sought. 14.That said, the power in section 14(1)(d) sits in evident tension with the associational freedom described above, and it is a tension the Registrar must navigate with care rather than resolve by administrative convenience. Freedom of association encompasses, as Article 2 of ILO Convention No. 87 makes explicit, the right of workers to establish organisations “of their own choosing” — a formulation that itself presupposes and protects trade union pluralism, that is, the right of workers to form more than one organisation within a sector where existing organisations are judged not to serve their interests adequately, and not merely the right to join whatever union already exists. The ILO's supervisory bodies have consistently cautioned that legislative provisions conditioning the registration of a new trade union on the absence of an existing “representative” body must not be applied so as to become, in substance, a licensing requirement that forecloses the emergence of new or rival organisations; registration is properly concerned with the acquisition of legal personality, a threshold and formal matter, and is to be distinguished from the wholly separate question of which union, among several lawfully registered, is entitled to be recognised as the exclusive bargaining agent for purposes of collective bargaining — a question for which representativeness thresholds are, in comparative practice, a legitimate and calibrated tool. To collapse the two — to use a representativeness test more properly suited to the recognition and bargaining-agency stage as a bar to registration, and therefore to legal existence itself — risks converting a narrow, exceptional ground of refusal into a general instrument for preserving incumbency, contrary to the purpose the Act and the Constitution alike are designed to serve. 15.The correct balance, in this Court's view, is that section 14(1)(d) must be construed and applied narrowly and only upon a genuine evidentiary basis: the Registrar must be satisfied, on cogent material, that an existing registered union does, in fact and not merely in constitutional aspiration, represent a substantial proportion of the specific interests the applicants seek to organise, such that the formation of a further organisation would serve no purpose the existing union cannot already serve. A refusal grounded in anything less — in mere formal eligibility, the sectoral breadth of a comparator union's constitution, or administrative convenience — fails properly to hold the balance the Act requires between the individual and collective right to organise, on the one hand, and the legitimate public interest in orderly and effective collective representation, on the other. V. The Nature of this Appeal 16.Section 30 of the Act confers a right of appeal to this Court, exercisable within thirty days of the impugned decision. The appeal was filed exactly thirty days after the date of the Respondent's letter and is, accordingly, properly and timeously before the Court. Being an appeal from a decision of a statutory office-holder exercising an evaluative, quasi-judicial function under the Act, it falls to this Court to examine whether the Registrar took into account matters that were relevant, excluded matters that were irrelevant, correctly construed and applied the applicable statutory test, and arrived at a decision reasonably open to her on the material before her; where, as here, the reasons for the decision are recorded in the decision letter itself and are not elaborated upon by any further evidence or submission from the Respondent, the Court's task is to test those stated reasons directly against the statutory provision invoked and the material referred to within them. VI. Sections 12 and 14 of the Act: Two Distinct Processes 17.Central to a proper disposal of this appeal is an appreciation that the Act does not contemplate a single, undifferentiated process by which a trade union comes into being and is registered, but rather two analytically distinct stages, each governed by its own considerations, and it is impermissible for the Registrar to import the considerations proper to one into the determination of the other. 18.The first stage, addressed by section 12 of the Act and reflected in the Appellants' own letter of 28th January, 2025 (which invokes “Section 12(2)” as the source of the promoters' authority to act), is concerned with the formation of the proposed union and the standing of those who come forward to seek its registration: the appointment of promoters by the employees desiring to organise, the constitution of interim leadership, and the internal, associational steps by which a group of workers translate a shared desire to organise into a body capable of approaching the Registrar at all. The considerations proper to this stage are essentially formative and procedural — whether the promoters were properly appointed, whether the requisite internal steps were taken, and whether the applicants have the standing the Act requires to bring an application in the first place. 19.The second stage, addressed by section 14 of the Act, is concerned with the application for registration properly so called, and with the Registrar's determination of that application once made: whether the union's constitution complies with the requirements of the Act, whether its name is lawful and non-deceptive, whether its objects are lawful, and — by section 14(1)(d), the provision material to this appeal — whether an existing registered trade union is already sufficiently representative of the whole or of a substantial proportion of the interests for which registration is sought. These are substantive, evaluative considerations, going to the merits of registration rather than to the threshold question of standing or formation. 20.The wording and structure of the two provisions accordingly assign different questions to different stages, and the factors relevant to one cannot properly be transposed to the other. A deficiency of formation — for example, doubt as to whether the promoters were validly appointed, or whether a constitutionally-prescribed minimum threshold of founding members was met — is a section 12 question, to be resolved before the application is treated as properly before the Registrar at all; it cannot be manufactured retrospectively out of a section 14(1)(d) representativeness finding, nor can a section 14(1)(d) finding be reached by reference to matters of form proper to section 12, such as the mere fact that a comparator union's own constitution defines its membership eligibility broadly. Conversely, once an application is properly and formally constituted under section 12 — as it was here, there being no suggestion anywhere on this record that the Appellants' application was procedurally irregular or that the promoters lacked standing — the Registrar's task under section 14 is confined to the substantive merits of registration, and specifically, in relation to ground (d), to a genuine, evidence-based inquiry into whether an existing union does, in fact, substantially represent the specific interests in question. It is not open to the Registrar, at that stage, to resolve the section 14(1)(d) inquiry by reference to a criterion — formal, constitutional eligibility to join a comparator union — that is a feature only of that comparator union's own section 12-stage constitutional documents, and says nothing whatsoever about whether that union, in fact and in practice, substantially represents the interests concerned. That, as I explain below, is precisely the error into which the Respondent's letter of 6th February, 2025 falls: it answers the section 14(1)(d) question — a question of fact concerning actual, substantial representation — by reference to section 12-type material — the bare eligibility criteria recited in each comparator union's constitution — which is simply not probative of the question the statute requires the Registrar to answer. VII. Whether the Registrar's Reasons for Declining Registration Were Sound 21.I turn, then, to test each of the three comparator unions relied upon in the Respondent's letter against the standard identified above: whether there is any proper basis, disclosed on the face of the letter or otherwise on the record, for a finding that the union in question is, in fact, “sufficiently representative of the whole or of a substantial proportion of the interests” of the specific class of workers — long-distance bus crew remunerated on a trip basis — for whom the Appellants seek to organise. 22.The Matatu Workers Union. The Respondent's own letter describes this union's membership as open “to any member who works in the matatu sector.” A matatu, in the ordinary and regulatory usage of that term in Kenya, denotes a public service vehicle of a class and character materially distinct from the long-distance buses operated by concerns such as Dreamline and Mash East Africa, by whom the Appellants are employed: the two categories of vehicle are subject to different regulatory treatment, serve different route structures, and are, as ground iv of the Memorandum of Appeal correctly asserts, commonly and readily distinguished from one another both in ordinary usage and in the transport industry itself. A union whose own constitution confines its field of operation to “the matatu sector” cannot, on the Respondent's own description of it, extend to bus workers at all; it is definitionally incapable of representing, still less “sufficiently” representing, a class of workers falling wholly outside the sector to which its membership is, by its own terms, confined. Reliance on this union to defeat the Appellants' application discloses, with respect, a plain misapprehension of the very material the Respondent's own letter recites. 23.The Transport Workers Union. Its membership, per the Respondent's letter, is open “to all members who work in the transport industries including public service transport.” This is a formulation of such sweeping generality — capable, on its terms, of embracing rail, maritime, aviation, haulage, matatu and bus workers alike, as the Appellants correctly observe in their submissions — that mere eligibility to join it cannot, without more, establish that this union does, as a matter of fact, organise or substantially represent the particular class of long-distance bus crew for whom the Appellants seek registration. Representativeness for the purposes of section 14(1)(d) is not established by the theoretical breadth of a comparator union's admission criteria; it requires some affirmative finding — of which the Respondent's letter discloses none — as to the actual extent to which that union has, in practice, organised and represents bus-sector workers specifically. Nor does the letter engage at all with the Appellants' own unrebutted account, recorded in their letter of 28th January, 2025, that attempts to be served through existing unions had proved unsuccessful precisely because of a want of understanding, on the part of those unions, of the trip-based remuneration structure peculiar to their trade — an account going directly to the adequacy, in substance, of the representation said to already exist, and which the Respondent's letter simply does not address. 24.The Public Transport Operators Union. This is, in my judgment, the clearest of the three errors, and squarely the subject of ground iii of the Memorandum of Appeal. “Operators” in the public transport sector, in ordinary and industry usage, denotes the owners and proprietors of public service vehicles and the businesses that run them — the employers of the drivers, conductors and crew who operate those vehicles — and not the employees themselves. A trade union, properly understood, is an organisation of employees whose purpose is to regulate relations between employees and employers; a body organised around and representing operators is, on the plainest reading of its own name and the Respondent's own description of it, an organisation of employers, or at the very least an organisation whose interests are those of the employing side of the industry rather than of the workers the Appellants seek to organise. To treat such a body as “sufficiently representative” of the interests of bus-sector employees for the purposes of section 14(1)(d) is not merely factually unsound; it is a category error that offends the basic architecture of the Act, which is built throughout upon the distinction between organisations of employees and organisations of employers, and it would, if allowed to stand, permit an employer-aligned body — whose interests in matters such as wages, working hours and conditions of service will characteristically diverge from, and may often be directly adverse to, those of the workers concerned — to operate as a bar to those workers organising for themselves. This ground of the appeal succeeds without difficulty. 25.It follows that none of the three unions relied upon by the Respondent affords a proper factual or legal basis for a finding under section 14(1)(d) that an existing registered union is sufficiently representative of the whole or a substantial proportion of the interests for which the Appellants sought registration. The Matatu Workers Union is, on the Respondent's own description, confined to a different sector altogether; the Transport Workers Union is described in terms too broad and unparticularised to found any finding of actual, substantial representation of bus-sector workers specifically; and the Public Transport Operators Union is not, on any fair reading, an organisation of employees at all, and cannot in law found a refusal under a provision whose entire premise is a comparison between organisations representing the same category of persons — employees — as the applicants seek to represent. The Registrar's decision, resting as it does entirely on these three comparators, cannot stand. 26.I would add only this. The manner in which the Respondent's letter proceeds — reciting, without more, the bare eligibility clauses of three existing unions' constitutions and treating that recitation as self-evidently dispositive of the section 14(1)(d) inquiry — illustrates precisely the conflation of processes identified in Part VI above: it answers a section 14(1)(d) question of fact (actual, substantial representation) with section 12-type material (constitutional eligibility criteria), and in doing so falls into exactly the error the statutory scheme, properly construed, does not permit. Grounds i, ii, iii, iv and vi of the Memorandum of Appeal accordingly succeed. 27.Ground v — that the decision violates the Appellants' rights under Article 36(1) of the Constitution and their right to form, join and participate in the activities and programmes of a trade union — succeeds as a consequence of the foregoing rather than as an independent basis of decision: having found that the statutory ground relied upon by the Respondent is not, on the material before her, made out, it follows that the refusal operated as an unjustified limitation of the Appellants' constitutionally protected associational freedom, there being no other lawful basis disclosed on the record for declining registration. VIII. Disposition 28.For the reasons set out above, I find that the Registrar's decision of 6th February, 2025 declining to register the proposed Kenya Busses & Allied Workers Union (TKBAWU) was erroneous in fact and in law, resting on an unsound application of section 14(1)(d) of the Labour Relations Act to comparator unions none of which was shown, on the material before the Registrar, to be sufficiently representative of the whole or of a substantial proportion of the specific interests of the class of workers the Appellants sought to organise. 29.Accordingly, it is hereby ordered:a)The appeal is allowed.b)The decision of the Registrar of Trade Unions contained in the letter dated 6th February, 2025, Ref. MLSP/TU/R/443, declining to register the proposed trade union, is declared unlawful, null and void, and is set aside.c)The Respondent is directed to proceed to register the proposed trade union upon confirmation that the requirements of section 12 of the Act, and the substantive requirements of section 14 of the Act other than section 14(1)(d) (which this judgment has finally determined in the Appellants' favour), have been met, having regard to the constitution and notice of change of officials filed in the Supplementary Record of Appeal; for the avoidance of doubt, the Respondent shall not, in giving effect to this order, revisit or re-invoke the ground disposed of by this judgment.d)Should the name under which the union is to be registered differ, as it presently appears to, from the name used in the original application, the Respondent shall register the union under its current and duly adopted name as reflected in the constitution on record, this judgment being determinative of the substantive right to registration of the body originally proposed as the Kenya Busses & Allied Workers Union (TKBAWU) and now constituted as the Kenya Bus Carriers Workers Union, or such other name as its promoters may lawfully and finally adopt consistently with section 14 of the Act.e)The Respondent shall complete registration, or communicate any outstanding and properly-founded objection confined to matters other than section 14(1)(d), within thirty (30) days of the date of this judgment.f)The Appellants shall have the costs of this appeal.It is so ordered. DATED SIGNED AND DELIVERED AT MOMBASA THIS 30TH JULY 2026OCHARO KEBIRAJUDGE