Munir Masoud, Paul k. Mwangi, Irose Musungu,George Opanga,Said Ruwa, David Cherop & Yuvenalis Gesora Proposers and Promoters of Tax Collectors Union [2012] KEELRC 2 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

APPEAL NO.2 OF 2011

IN THE MATTER OF APPEAL OF:

1. MUNIR MASOUD

2. PAUL K. MWANGI

3. IROSE MUSUNGU

4. GEORGE OPANGA

5. SAID RUWA

6. DAVID CHEROP

7.  YUVENALIS GESORA PROPOSERS AND PROMOTERS

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

VERSUS

THE REGISTRAR OF TRADE UNIONS...........................1ST RESPONDENT

BANKING, INSURANCE & FINANCE UNION...............INTERESTED PARTY

(Before Hon. Lady Justice 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 10th December 20 10 be quashed.

b)  That an order do issue 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 10th  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 10th 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 substantial proportion of 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  specified 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 name of 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's sole  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  protect  and  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 in law and in 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  10th 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 issue is whether the Appellants' right to  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 10th 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 given 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 in law and in 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