Associational autonomy vis-à-vis Registration of Trade Union: Angaha and Others v. Registrar of Trade Unions, Civil Appeal 71 of 1972

High Court of Kenya at Nairobi (Muli, J)

Facts:

The appellants sought to register themselves as a trade union under the name and style of the Kenya Institutional Worker's Union (hereafter referred to as the proposed trade union), pursuant to the Trade Union Act, Cap. 233. The Registrar refused to register them basing his decision on the objections raised by three existing trade unions that other trade unions already registered were sufficiently representative of a substantial proportion of the interests in respect of which the appellants sought registration.

The appellants' Arguments:

(i) The Registrar erred in failing to consider sufficiently at all the entire evidence that was available.

(ii) The Registrar erred in failing to inform the appellants of objections that were advanced against the registration of the appellant's proposed trade union before he made his said Order.

(iii) The Registrar erred in failing to consider that the membership of the proposed trade union would comprise of employees whose interests cannot be catered for by any other trade union.

Issues:

(a) Whether the Trade Union Act is inconsistent with the Constitution for forbidding registration of a Trade Union on the ground of being sufficiently representative of the whole; and

(b) Whether the right to form a Trade Union is absolute.

Held:

1. An appeal to the High Court for registration of a trade union is incompetent under the rules if the Registration has not yet made a final decision refusing to register the proposed trade union.

2. While the Registrar has discretion to refuse registration of any trade union if he is satisfied that any of the nine requirements of S.16 of the Act are not satisfied or complied with, it is nevertheless mandatory that in the event of his refusal under paragraph (d) sub-section (1) thereof, he must notify any registered trade unions concerned and he must invite them to submit any objections they may wish to make against the registration sought.

3. The trade union Act expressly provides special procedures and duties the Registrar must follow upon refusal to register a Trade. Apart from these, there are no further implied duties he has to follow.

4. Under the Trade Union Act, the onus to satisfy the Registrar that the proposed Trade Union satisfied the requirements of S.16 of the Act lay on the appellant.

5. The application of principles of natural justice depends on the nature of inquiry and each case must be considered on the circumstances of that particular case.

6. The Constitution protects the freedom to belong to a Trade Union.

7. The Trade Union Act is not inconsistent with the Constitution in as far as it forbids the registration of a Trade Union on the ground that other registered Trade Unions are sufficiently representative of the whole or substantial proportion of the interests in respect of which registration of a Trade Union is sought. The right to be registered as a Trade Union is a contingent right acquired upon fulfilment of the requirements of the provisions of the Trade Union Act.

8. The Registrar is charged with the duty to satisfy himself that the policy laid down under the Constitution and safeguarded by the provisions under the Trade Union Act is not infringed. In the instant case, he had ample evidence that the interests of the proposed Trade Union were sufficiently represented or substantial proportions thereof were represented by the other registered Trade Union. Therefore, his refusal to register the proposed Trade Union was not to divest itself of a vested right and therefore he had no duty to call upon them to show cause why the proposed Trade Union should not be refused registration.

Compiled by Jaba Shadrack, 2012