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Court of AppealAllowedCivil Appeal No. 255 of 2010

Banking Insurance Finance Union (K) v Kenya Revenue Authority [2018] KECA 152 (KLR)

Court of Appeal of Kenya
9 November 2018
2,296 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled KRA must deduct union dues for BIFU members, confirming courts cannot invent reasons to deny workers' union claims.

What this practically means

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Executive summary

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The appellant, Banking Insurance and Finance Union (Kenya), sought an order of mandamus compelling the Kenya Revenue Authority to implement a check-off system and deduct union dues for the 904 employees it had recruited. The Registrar of Trade Unions had issued a compliance notice under section 49(1) of the repealed Trade Disputes Act, and ministerial approval and a gazette notice of 21st November 1997 authorised the deductions. Dulu J declined the orders, reasoning that the respondent was not a financial institution within the ambit of the appellant's constitutional mandate, applying the definition in section 2 of the Banking Act. The Court of Appeal held that the judge misdirected himself: the real issue was whether the respondent had satisfied the court, as section 49(2) permits, that it was not bound to comply with the Registrar's notice. The financial-institution objection appeared nowhere in the respondent's replying affidavit and was not advanced as a reason for refusal; a court may not, 'out of creativity and craft', construct a reason of its own to deny relief. The respondent's pleaded reasons - rivalry with KUCFAW, insufficiency of membership, essential-service status and ineligible members - had been rejected by the High Court without contradiction. Allowing the appeal, the Court set aside the High Court judgment of 22nd September 2008, substituted judgment in favour of the appellant as prayed in the motion, and awarded the appellant costs both here and below. This decision binds subordinate courts on the allocation of the statutory burden of justification under section 49(2) and on the exclusion of extraneous matters in deciding mandamus applications.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge rightly addressed the question of whether the respondent was a financial institution, or whether the issue was whether the appellant had recruited the requisite number of the respondent's employees and so was entitled to an order compelling implementation of the check off system
  2. 2.Whether the respondent satisfied the court, as required by section 49(2) of the Trade Disputes Act (repealed), that it was not bound to comply with the Registrar of Trade Unions' notice

Key legal issues

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01

Framing of the issue for determination on appeal

Holding

The central issue was whether the respondent was duty bound to comply with the union's and the Registrar's check-off notices, not whether it was a financial institution within the appellant's constitutional mandate.

Reasoning

The appellant had recruited over 900 of the respondent's employees, obtained ministerial approval and a gazette notice for check-off deductions, and the Registrar had issued a compliance notice. The High Court instead defined the respondent's status under section 2 of the Banking Act, addressing an issue not raised in the pleadings or the replying affidavit, and thus misdirected itself.

p. 2
02

Burden under section 49(2) of the repealed Trade Disputes Act

Holding

The employer was given a final opportunity to satisfy the court why it was not bound to comply with the union's or Registrar's notice; its reasons (rivalry with KUCFAW, insufficiency of membership, essential service, ineligible or deceased members) were not controverted findings against it and were insufficient.

Reasoning

Section 49(2) allows the employer to satisfy the court that it was not bound to comply or that failure was due to causes beyond its control. The judge properly analysed the respondent's complaints, finding the union rivalry settled by Ojwang J's earlier decision and no particulars given of management or deceased members, and that the respondent was not an essential service provider.

p. 3
03

Extraneous reasons for declining mandamus

Holding

The reason that the respondent was not a financial institution was nowhere set out in the respondent's affidavit and was not advanced as a reason for refusal; the judge could not rely on it to decline the order.

Reasoning

The replying affidavit of Mr. Micheal Onyura did not disclose the financial-institution complaint. Although the reason may have been correct in law, a court deciding an application for mandamus under section 49 must be satisfied with the employer's own reasons and cannot construct a disqualifying reason itself. Taking that extraneous matter into account vitiated the decision.

p. 3

Legal principles established

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  • Under the proviso in section 49(2) of the repealed Trade Disputes Act, an employer resisting a Registrar's check-off notice must itself satisfy the court that it was not bound to comply; the court may not, 'out of creativity and craft', supply a reason of its own upon which to decline the order.
  • A first appellate court will interfere where the trial judge takes into account extraneous matters not raised in the pleadings or affidavits and thereby arrives at a wrong conclusion.

Court orders

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  1. 1.The judgment in HCCC Misc. Application No. 1683 of 2004 delivered on 22nd September 2008 is set aside and substituted with a judgment in favour of the appellant as prayed for in its Notice of Motion
  2. 2.The appellant is awarded the costs of and incidental to this appeal as well as costs in HCCC Misc. Application No. 1683 of 2004

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
HCC Misc Application No. 1683 of 2004
Jurisdiction invoked
First appellate jurisdiction under the Constitution and the Appellate Jurisdiction Act (appeal from the High Court)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

it was not for the court, out of creativity and craft, to establish a reason upon which to decline to grant the order sought, even though the reason relied upon may well be correct.
p. 3Judicial restraint - court cannot supply reasons not advanced by a party
We are satisfied that the learned judge took into account matters that he ought not to have considered, and in so doing arrived at the wrong conclusion
p. 3Interference with exercise of first-instance discretion
the appeal is allowed with costs to the appellant.
p. 3Disposition
The Judgment in HCCC Misc. Application No. 1683 of 2004 delivered on 22 nd September, 2008 is hereby set aside and substituted with a Judgment in favour of the appellant as prayed for in its Notice of Motion dated 15 th March, 2005.
p. 3Final orders - substitution of High Court judgment

Issues in the judgment

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minor

The motion is described as dated 16th March 2005 in the opening paragraph but the final orders refer to a Notice of Motion dated 15th March 2005.

minor

The judgment variously refers to section 49 of the Trade Unions Act and section 49 of the Trade Disputes Act (repealed) when describing the same provision.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Banking Insurance Finance Union (K) v Kenya Revenue Authority [2018] KECA 152 (KLR)", Case Analysis (2018). Civil Appeal No. 255 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/152/eng@2018-11-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.