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ELRCDismissedIndustrial Cause (number not stated in judgment)· [2013] KEELRC 873 (KLR)

Banking Insurance & Finance Union v Agricultural Finance Corporation [2013] KEELRC 873 (KLR)

Industrial Court of Kenya
30 October 2013
MMM. Mbaru
2,262 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court confirmed that a trade union can sue on behalf of a fired worker, even after employment and union subscriptions end.

What this practically means

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Executive summary

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The Agricultural Finance Corporation (AFC) filed a preliminary objection on 3rd September 2013 arguing that the Banking Insurance and Finance Union (BIFU) had no locus standi to sue on behalf of Charity Wairimu Maina, a former AFC employee terminated in 2012 for gross misconduct, and that no cause of action lay against AFC. AFC argued that union membership depends on employment in the sector and remittance of monthly subscriptions under the Labour Relations Act, so termination of employment ended the grievant's membership, leaving her to sue in person under section 89 of the Employment Act. AFC relied on Industrial Cause No. 371 of 2012 (BIFU v AFC) where a similar claim had been struck out. BIFU countered that the Industrial Court, established under Article 162 of the Constitution with exclusive jurisdiction under section 12 of the Industrial Court Act, hears trade disputes as defined in section 4 of the Labour Relations Act; that the grievant was a member at termination; and that the union had standing under section 21 of the Act and Articles 22, 39 and 41 of the Constitution, relying on Mumo Matemu. The court dismissed the objections, holding that the right of association is constitutionally protected, that section 39 of the Labour Relations Act does not condition representation on subscription payments, and that the authorities cited were distinguishable or merely persuasive. The parties were directed to schedule the matter for hearing. No costs order was made.

Key legal issues

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01

Whether a trade union loses capacity to represent a member whose employment has been terminated

Holding

No - termination of employment does not end union membership or the union's standing to represent the member in a termination dispute

Reasoning

The court held that the right of association is constitutionally protected under Article 41 and that membership expectations persist. Section 39 of the Labour Relations Act authorises unions to prosecute legal proceedings and conduct trade disputes for members without distinguishing between those who have paid subscriptions and those who have not. Finding otherwise would ignore the very purpose of membership. Only the member, not the employer, can regulate that relationship.

p. 4
02

Whether the prior decision in Industrial Cause No. 371 of 2012 (BIFU v AFC) bound this court

Holding

It was persuasive only and was not followed

Reasoning

The court noted that the earlier decision of a coordinate court with original jurisdiction is only persuasive. The court emphasised its constitutional mandate to interpret the Constitution progressively in promoting industrial peace, and declined to follow the earlier decision where the right to association was at stake.

p. 3
03

Whether Mumo Matemu v Trusted Society of Human Rights Alliance was applicable

Holding

Distinguished - it concerned Article 22 constitutional references on public interest grounds, not union representation under section 22 of the Industrial Court Act

Reasoning

The court distinguished the authority because it dealt with public interest standing under Article 22 of the Constitution, whereas the nexus in the present case is between a union and its member under the Industrial Court Act and the Labour Relations Act. The two bases of representation are legally distinct.

p. 3

Legal principles established

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  • A trade union has standing to institute a claim on behalf of its member challenging termination, and termination of employment does not of itself terminate union membership until the member seeks to exit
  • Section 39 of the Labour Relations Act does not condition a union's representation of a member on payment of subscriptions

Court orders

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  1. 1.The preliminary objections raised by the respondent are dismissed
  2. 2.The parties are directed to schedule the matter for hearing

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162; Article 165; Article 2; Article 22(1); Articles 39 and 41
  • Labour Relations Actsections 2, 4, 21, 33, 39, 48, 59(1) and (2)
  • Employment Actsection 89
  • Industrial Court Actsections 12 and 22

Cases cited (2)

  • BIFU versus AFC, Industrial Cause No. 371 of 2012
  • Mumo Matemu versus the Trusted Society of Human Rights Alliance et al, CA 290 of 2012
Jurisdiction invoked
Article 162 of the Constitution read with Article 165 and section 12 of the Industrial Court Act

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 v Agricultural Finance Corporation [2013] KEELRC 873 (KLR)", Case Analysis (2013). Industrial Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/873/eng@2013-10-30

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