In a recent case namely Mugambi & 4 others v Registrar of Trade Unions (Appeal E145 of 2021) [2022] KEELRC 4151 (KLR) it was held that the appellants were not represented by any other trade union and thus had a right to be registered.
The appellants were Kenyan lawyers employed as public prosecutors by the Office of the Director of Public Prosecutions (ODPP). They decided to register a trade union under the name Kenya National Union of Public Prosecutors (KNUPP). They lodged their documents with the Registrar of Trade Unions who declined to register the trade union following advice from the National Labour Board. The Board’s advice was a result of an objection from the Secretary-General of the Central Organization of Trade Unions (COTU[K]) with no justifiable reason.
The honourable court held that:-
- The appellants were right before the court as all supportive documents necessary in the process of registration, under the Labour Relations Act were exhibited and were not disputed. The prosecutors were working with the ODPP in the public service.
- 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. The objector did not give evidence to show that there are trade unions representing the interests of the intended registration of the trade union. 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 Labour Relations Act defined a unionisable employee as an employee who was eligible for membership in a trade union. The appellants did not make decisions for the ODPP, under the Office of the Director of Public Prosecutions Act (ODPP Act).
- It was impossible to recruit Mr Noordin Haji, the DPP, as one of their members, on account of him being a public prosecutor, as defined in the KNUPP constitution. Therefore the constitution of KNUPP was clear on management and unionisable employees.
- The constitution of KNUPP was not to be read in a vacuum. The Industrial Relations Charter gave guidance, on who was management staff and who was unionisable staff.
- The registration and regulation of trade unions are vested with the Registrar of Trade Union and not the National Labour Board.
- COTU[K] was the sole objector to the registration of KNUPP. It sat in the National Labour Board, rendering their advice on registration of KNUPP, as worthless as a wooden frying pan.
- The appellants’ constitutional rights and freedoms, under article 36 on the freedom of association, article 41 on labour relations and article 47 of the Constitution of Kenya, 2010 (Constitution) on 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 prosecutors had every right to form a trade union because they were professionals in their own field and public service.
- No trade union emerged to claim it represented public prosecutors when the respondent invited objections. 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 represented by an already existent trade union.
- 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 and the Labour Relations Act gave them these rights to actively form trade unions and engage in the management of their affairs in general labour practices.
The Registrar of Trade Unions was ordered to immediately and unconditionally, register the trade union, KNUPP, issue the certificate of registration and enter its name in the Register of Registered Trade Unions. This is a great win for prosecutors.
