Munir Masoud, Paulk. Mwangi, Irose Musungu, George Opanga, Said Ruwa, David Cherop & Yuvenalis Gesora Proposers and Promoters of Tax Collectors Union v Registrar of Trade Unions & Banking, Insurance & Finance Union [2012] KEELRC 1 (KLR)

REPUBLICOF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI

APPEALNO.2OF 2011

IN THE MATTER OF APPEAL OF:

1. MUNIR MASOUD

2. PAULK. MWANGI

3. IROSE MUSUNGU

4. GEORGE OPANGA

5. SAID RUWA

6. DAVID CHEROP

7.  YUVENALISGESORAPROPOSERSAND PROMOTERS

OF TAX COLLECTORS UNION.................................................APPELLANTS

VERSUS

THE REGISTRAROF TRADE UNIONS...............................1ST RESPONDENT

BANKING, INSURANCE&FINANCEUNION...................INTERESTEDPARTY

(Before Hon. LadyJustice Maureen Onyango on 5th December,2012)

JUDGMENT

By  a Memorandum of  Appeal dated  6th  January  2011 and supported  by  a verifying affidavit of MUNIR ABUBAKAR MASOUD  sworn on  the  same date, the proposed Tax  Collectors Union. The Claimant was later substituted through an amendment with the Appellants namely MUNIR MASOUD, PAULK.  MWANGI, ROSE    MUSUNGU, GEORGE OPANGA,   SAID   RUWA,   DAVID   CHEROP and YUVENALIS     GESORA    who     describe   themselves   as   PROPOSERS and PROMOTERS OF  TAX COLLECTORS UNION,  the  appellants seek the  following orders:

a)  That the   decision by  the   Respondent refusing to  register the appellant dated 1Oth December 20 10  be quashed.

b)  That  an  order do   i ssue  against  the   Respondent, to register  the Tax Collectors Union.

c)  Any   other  further  or   better  relief   that  this  Honourable  Court  may consider appropriate.

d)  That the  Respondent do  bear costs of this Appeal.

In  the  memorandum of Appeal the  Appellants have stated that they rely on  the following legal  provisions-

a)  Industrial Relations Charter Part B II clause No.4

b)  Section 4,  5 and 30  of the  Labour Relations Act,  2007.

c)   Section 6,7, 12  and 31 of the  Labour Instutuions Act 2007.

d)  The  Constitution of Kenya Article 27(1):  (2) : (4) and (6), Article 41(1) and (2) (c) and Article 73.

The Appellants   have  in   the  memorandum  of   Appeal  given   a  history   of registration of    the proposed   Tax    Collectors  Union  which  first   sought registration on  21st January 2002 seeking to  represent employees of the Kenya Revenue Authority only.

The  application for  registration of  the proposed union was rejected by  a letter from   the Registrar of  Trade Unions,  the   Respondent herein, after objections were raised   by    Kenya  Union   of   Commercial,   Food    and  Allied    Workers (KUCFAW), Banking   Insurance    and   Finance   Union   (BIFU(K)), Central Organization of  Trade  Unions  Kenya(COTU), Federation  of  Kenya Employers and the Labour Commisioner on  the  ground that employees of Kenya Revenue Authority are adequately covered by  BIFU(K)  KUCFAW  and the Union of  Kenya Civil Servants (UKCS).

On 10th August 2009 the proposed union filed the second application for registration. The   Interested Party was enjoined pursuant to an application dated 23rd February 2011 and filed in Court on 24th February 2011.

The Respondent filed its Memorandum of Response to the Appeal on 4th August 2011 and an amended memorandum of Response on 24th May, 2011. In both documents the Respondent states that it is responsible for registration and regulation of all trade unions, federations of trade Unions and employers organizations. That whilst discharging its duties, it  is required to  act on   the advise of the National Labour Board, that the  applicants did  not  challenge the first refusal  to  register  the   proposed union,  that  the   second  application  for registration was filed  on   l0th August 2009. The Respondent submits that the Appellants interests  are  well   catered  for   by   existing  unions  namely  Kenya Union of  Commercial Food   and Allied  Workers and Banking, Insurance and Finance Union, that the  law  is very  clear that no  other union can be  registered where   there   is already   another   registered   union   which  is   sufficiently representative of  the   interests for  which the applicant seeks registration and that the  decision to  refuse registration of the proposed Tax Collectors Union is within the powers conferred on  the  Respondent by the  Labour Relations Act.

The  Interested Party, Banking   Insurance   and   Finance   Union filed its Memorandum of Interest on 11th March 2011 and the Amended Memorandum of Interest on l0th May 2012.

In the Memorandum of Interest the Interested Party states as follows:

a)  It was registered as a trade union on  7th May  1986,

b)  Its constitution covers the   interests of employees of Kenya Revenue Authority,

c) It has recruited more than 900 employees of Kenya Revenue Authority into its membership comprising more than 51% majority,

d)  The Appellant did not appeal against the refusal to register the proposed union of 11th March 2004,

e)  The interim   secretary   general   of   the proposed   union   joined   the employment of the Interested Party on 18th September, 2003 to assist it in recruitment of employees of Kenya Revenue Authority and at one time contested for a position in the union’s election but lost.

f) That having failed to challenge the first refusal of registration the Appellants are estopped from submitting a similar application

g)  the Appellants failed to  apply for  a certificate to  promote their proposed union against mandatory procedure under the  Labour Relations Act

h)  the application  for registration  of   the  proposed  union  is   incurably defective. It  does not  meet the  mandatory requirement for  7  members  of a proposed union to  sign   Form "A" as it  was   signed by  only 6 eligible members since Mr.  Masoud is  not   an  employee of  the   Kenya Revenue Authority and  therefore not   eligible  to   be  a  member of  the  proposed union and to sign Form A,

i) The   application by  the   proposed union  to  represent  employees of  only one  employer is contrary to section 14  of the  Labour Relations Act  which only  authorizes sector based unions, and the  Government Policy  on trade unions  which  promotes  viable, independent,  democratic and   strong unions, and

j)  that Mr.  Munir A. Masoud is not eligible to  be  an official  of the proposed union  by  virtue  of  section 31(2)  of  the   Labour  Relations Act   which provides that no  person shall be  an official  of more than one  organization as he  is an official  of Hazina Employees Welfare Association and has  also vied  for  election as an official   of  the   Interested Party where his appeal against the elections  is   still pending   before    this  Court as Misc. Application No. 5 (A) of 2009.

The Appeal was mentioned in  Court on  21st  July 2011 and 20th January 2012. The   hearing of  the Appeal started  before Hon. Justice  Mukunya on   25th  May 2012 and was  adjourned to  22  June 2012 for  the Respondent and Interested Party's submissions. On  23rd June 2012 the  case was rescheduled for  hearing on   31st  July,  2012 when the Appellants submissions  were   heard. When the case came up for hearing on 31st July 2012, the case was allocated to me as Justice Mukunya had by then retired. The parties agreed to continue with the hearing of  the   Appeal from where it  had  reached before Justice  Mukunya.  I therefore heard submissions by the   Respondents and the   Interested Party on 31st  July, 2012. The   parties thereafter agreed to  file  written submissions and came back for  mention on  27th  September, 2012. The  parties highlighted their written submissions on  5th October 2012.

Registration  of   trade  unions  IS   provided for   under   Article  41(2)    of   the Constitution  which gives  every worker the   right to  form, join  or  participate in the   activities and programs of a trade union, and in  section 14  of  the Labour Relations Act which is reproduced below:

(1)A trade union may apply for  registration  if-:

a)  The   trade union has applied for  registration in  accordance with this Act:

b) The  trade union has adopted a constitution that complies with the requirements of  this Act,  including the requirements set out in  the First Schedule;

c)  The  Trade union has an  office and postal address within Kenya;

d)  No other trade union already registered is-

(i) In  the case of  a trade union of employers or  of  employees, sufficiently representative of  the  whole or  of  a substantialproportionof  the interests in respect of  which the applicants seek registration; or

(ii)In case of an  association  of trade  unions,  sufficiently representative of the whole or  a substantial proportion of  the trade unions eligible for  membership thereof:

Provided that  the Registrar shall,by  notice in the Gazette and in one national daily newspaper with  wide circulation, notify  any registered trade  union,  federation  of trade  unions  or   employers' organization which appear to him to represent the same interest as the applicants of the  receipt of   such application and    shall invite the registered trade union federation of  trade unions or  employers' organization concerned to submit in writing, within a  period to be specifien in the notice, any objections to the registration.

e. subject to subsection(2) only members in a sector specified in the constitution qualify for  membership of the trade union;

f.the nameof   the trade union is  not   the  same as that  of  an existing trade union,or  sufficiently  similar so  as to mislead  or cause confusion;

g. the decision to register the trade union was made at a  meeting attended by the least fifty members of the trade union;

h.  the  trade  is  independent from the  control, either direct  or indirect,of any  employer or employer's organizations and;

i.the trade union'ssole   purpose is to pursue the activities of  a trade union.

(2) Notwithstanding the provisions of  subsection (1) (d) the Registrar may register a trade  union consisting of persons working more than  one sector,  if   the  Registrar is satisfied  that  the  constitution contains suitable  provisions  to  protectand    promote  the  respective  sectoral interests of the employees.

I  understand  the prayers by  the   Appellants to  mean that I  should find that their  application  for   registration  meets  the   requirements for   registration  of trade unions under the  law  and therefore the  Registrar had no  reason to  refuse to register the  Tax  Collectors Union. Once I find  this to be  the  position, I should set aside the decision of the  Registrar refusing to  register the  union and finally, direct the Registrar to register the  proposed Tax  Collectors Union.

The  issues as framed by the  applicant are  the  following:

(i) Whether the  appellant's application was lodged procedurally and whether the  same was technically and legally sound.

(ii) Whether the appellants were   given   a fair   hearing before their application for registration was rejected.

(iii) Whether  the Respondent  was justified m  law   and m  fact   to  refuse  the registration of the  appellants union.

(iv) Who  should meet the  costs of this suit.

I agree with the  issues as framed by  the Appellants and adopt the  same. I will proceed to consider the  issues in  the  order in  which they are presented.

1.  Whether the  Appellants application was lodged procedurally and whether the  same was technically and legally sound.

"Section   14   of   the    Labour Relations Act    sets out the    requirements   for registration of a trade union".

The   first condition  is   that  the   trade  union  has  applied for   registration  in accordance with the   Act.  Sections 18 of the   Labour Relations Act sets on the manner in which an application for   registration shall be made. The   section provides that the application 'shall'be made to the Registrar in Form A and be accompanied by:

a)  The  prescribed fee,

b)  A certified copy of the constitution of the trade union.

c)  A certified copy of the attendance register and minutes of the meeting at which the trade union was established.

d)  The application must be signed by 7 members of the trade union.

The   Appellants have submitted  that  they complied with all  requirements  for registration of the  union but the  Respondent refused to  register them because there are another 2  unions namely, the  Kenya Union of Commercial Food and Allied   Workers, and  the   Banking, Insurance and Finance Union which are sufficiently representative of the  whole or  substantial proportion of the interest in  respect of which the  proposed Tax  Collectors Union seeks representation.

The Respondent  and  the Interested  Party  have  both  submitted  that   the Appellants application  for registration of  the   proposed Tax   Collectors Union does not meet the   requirements of  the   Act.  The   Respondent has stated that there are three unions, KUCFAW,  BIFU  and The  Union of Kenya Civil Servants which  adequately  represent the interests  of   workers   of   Kenya  Revenue Authority, that the   Appellants have admitted that at one   time or another the employees of KRA have been recruited as members of the  three unions with the active participation of the  Mr.  Munir Masoud, the Interim Secretary General of the proposed Tax Collectors Union. The  Respondent has further submitted that the   Appellants are   not employees of  Kenya Revenue Authority and  therefore lack capacity to apply for  registration of the  proposed union as both the Kenya Constitution  and  the   Labour,  Relations  Act   reserve  the   right  to   form and participate in  the   activities and  programs of  a union to  employees only and further, that the  employees of Kenya Revenue Authority who  were  recruited as members of BIFU  have never revoked their membership and  have never been recruited as members of the  proposed Tax  Payers Union.

The    Interested  Party  has   associated  itself    with   the submissions  of   the Respondent and in  addition submitted that this being a second Application for registration by  the  same union and having failed to appeal against the refusal to  register the   union in  the first instance,  the Appellants are   estopped  from making another application for  registration of the same union.

I have gone through the  pleadings and note that the  only  documents relating to the  application for  registration that have been annexed to  the  Memorandum of Appeal or  submitted to  the Court is  the  application for  registration dated  l0th August 2009 and  the  receipt for  payment for   the   application issued  on   the same date. Refer to Appellants Appendix xxv and xxvi.The application for registration does not contain the   names, titles, identity certificate numbers, addresses and occupations of  the   applicants as required by  Form A.  It only contains 7 signatures without any identification of the signatories.

The   Appellants  have  also  not   submitted a  copy   of  the   constitution  of  the proposed union or list  of  members with   the   appeal. I have not even seen the notification of refusal to  register the union issued by  the   Respondent as none has been availed to the Court. If I have to quash the decision of the Respondent refusing to  register the  union, that decision must be  before the Court. Further, if I have to direct the  Respondent to  register the  Tax  Collectors Union, a copy  of the application form together with all  the  annexure  required to  be  submitted together  with  the  application must  be   availed  to   the    court  so   that  I  can ascertain that the  application was technically and legally sound as submitted by  the   Applicants.  Sadly, I am   unable to as that information has not been availed to  me.  The provisions of section 14 and 18 of the Labour Relations Act relating to  the  requirements for  registration are couched in  mandatory terms. The Appellants have not proved that they   complied with all the   requirements prescribed  by  law   and  therefore that  their application was technically and legally sound.

The  other point arising from this issueis whether the Appellants' rightto  form,join   or   participate in   the activities  and  program of   a trade union as envisaged in  Article 41(2) (c) of  the Constitution were breached by  the   Respondent.On the   outset I must point out that the Application for registration was lodged on   l0th August 2009.  The   decision  of  the   Registrar which as I have already stated has not   been availed to  the   Court, must  have been made before 11th August 2010, the  date on  which Munir Masoud issued a notice of  intention to  institute  proceedings against the refusal to  register the union to  the   Attorney General. By  that date the   Kenya Constitution  had  not been  promulgated.  It  therefore  follows that  Article 41   could  not   have  been breached by  the  Respondent before its enactment.  Be  that as it  may, the issue is  whether the  Appellants were  given  a fair  hearing before their application  for registration was rejected which is the  next issue for determination.

2.  Whether the  appellants were  given  a fair  hearing before their application for  registration was rejected

The   Appellants have submitted  that  they were   never g1ven  a hearing  before their application was rejected by  the   Respondent.  They were   only   asked  to comment on   the letters of objection. They also submit that they were never accorded a hearing after receiving comments from the National Labour Board. For  these reasons the  Appellants submit that their constitutional right to  fair administrative action was denied. The  Appellants also question the  reliance  by the  Respondent on  the  National Labour Board to  reach a decision. Further they submit that a representative of the  Interested Party sits on  the  National Labour Board and there is  no  evidence that he  recused himself when the  Application  of the Appellants was being discussed.

I have read the  provisions of the  Labour Relations Act  that relate to  registration of unions. There is no  express provision for  a hearing by the  Registrar before he rejects an application for registration of a trade union. Section 20  only  requires the   Registrar, if not satisfied that the  trade union meets the  requirements  for registration as set out in  the   Act  and refuses the   application,  to  advise the trade union in form D in  the  Second Schedule of the  Act.

The  Appellants did  not  ask to  be  heard. The  Registrar had no  obligation to  go beyond his responsibility as set out in  the Act  to  hear  them. Nevertheless he sent all  the  objections to  the registrations to  the Appellants and asked for  their comments. They were thus  given  an opportunity to  respond to  the  objections raised against their application before the  Registrar made the  decision to  reject their  application  for   registration.  In   my    opinion,  this  was   a reasonable opportunity for  the  Appellants to  raise any issues they had before the decision was made.  I therefore find   that they were   not denied an opportunity to   be heard.

On  the   issue of  the Respondent relying on  the advice of  the   National Labour Board, I do  not see  how  he  could fail  to do  so.  The  very  law  that permits him  to make decision requires him to  do  so  only  after consulting the  National Labour Board.  Failing to  do  so  would be  in contravention of  the   law.  It has not been alleged that  the   provisions of  the   law  is unconstitutional. Unless the  law   is changed or  declared unconstitutional,  the  Respondent is bound to comply with it.  For  these reasons I find  no  merit in  the  argument.

3. Whether the   Respondent  was justified 1n  law   and m  fact   to  refuse the registration of the  Appellants union.

The  Court has already found as stated above that the  documents availed to  the Court are  not   sufficient  to   enable  the   court  determine  whether or   not  the application  for   registration  by    the    Appellants  met  the  requirements   for registration as provided for  in  section 14   and 18 of the  Labour Relations Act.

In  their submissions  the   Appellants  have  relied on  several  provisions of  the Kenya Constitution.  I have already stated herein above that the  application for registration  was dealt  with before the   promulgation of  the   constitution.  The Respondent can therefore not  be held  responsible for  implementation of the Constitution retrospectively.

The  Appellants have submitted substantially that BIFU  (K) does not meet the requirements of the Labour Relations Act.  In  my  opinion this is a moot issue as the  issue before the Court is  not  whether or  not BIFU(K) is operating within the law.   I  have also  been  referred to  the   following cases and  authorities  by  the Appellants counsel.

(i) Mombasa High  Court Civil Case No. 387 of 2002, Salim Idd  Mwasina & 2 others Vs Registrar Of Trade Unions & 4 Others, Onyango Otieno . (ii)  Industrial Cause No. 75 of 1999.

(iii) Industrial Cause No. 28  of 1996.

(iv) Court of Appeal in Appeal No.60  of 1988.

(v)  Industrial  Court  in   Cause  No.  488(n)  of  2009,  Kenya Long   Distance Truck  Drivers  and   Allied    Workers   Vs    Kenya   Road Transporters Association & Transport and Allied Workers Union.

(vi) H.C.  Misc.  Appl.  No. 1683 of 2004.

I find  that all  these cases are not  relevant to  the determination of this case as the   issues determined in  the   cases were   different from those  in  the  present case.

On  the   issue that the Interested Party's representative sits on  the   Board and did    not    recuse  himself,  the Appellants  have  merely  alleged  that   it  is  a possibility. They have stated  that there is no  evidence that he  did  not recuse himself. It was not for  the   Interested Party or  the  Respondent to  submit the evidence, but the  onus of the  Appellants to  do  so.  Having failed  to submit the evidence they  cannot  accuse  another  party  of   not    having  done  so. This therefore remains an  allegation without proof. The   Court has no  information upon which to  make a decision on  the   issue. The   allegation is therefore  not proved and is rejected for  that reason.

The   Interested Party submitted that the   Appellants are not   entitled to make another application for  registration  having failed to  challenge the   decision of the  Respondent refusing to  register the same union dated 18th January  2002. This argument has no merit as the   present application is  different from the earlier application. Each application is considered on  its own  merits.

In the end, I  find   that the   Appellants have not   convinced  me  that  they are entitled  to   the orders  prayed for   in   the   appeal.  Accordingly the   Appeal is dismissed. Each party shall bear its costs.

DATED AND DELIVERED IN NARIOBI THIS 5TH DAY OF DECEMBER, 2012.

Hon. Lady Justice Maureen Onyango

JUDGE

Read and signed in  the  presence  of:

Enonda instructed by Enonda,  Makoloo, Makori and Company Advocates for  Claimant

W.K.  Langat for  Respondent

Isaiah Kubai for Interested Party