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ELRCAllowedCause No. 2563 of 2012· [2014] KEELRC 914 (KLR)

Banking Insurance & Finance Union (Kenya) v Utimo Sacco Society Ltd [2014] KEELRC 914 (KLR)

Industrial Court of Kenya
28 March 2013
1,793 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 ruled that employees, not employers, choose their union, ordering Utimo Sacco to sign a recognition agreement and remit dues.

What this practically means

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Executive summary

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The claimant union, registered under the Labour Relations Act, 2007, brought a memorandum of claim dated 20th December 2012 seeking a declaration that it had recruited a majority of the respondent's unionisable employees, that it was the sole appropriate union, and that the respondent be compelled to sign a recognition agreement and remit union dues. The respondent denied the claim, asserting its core business was public transport, that the Transport & Allied Workers Union was the correct union and was at an advanced stage of a recognition agreement with it, and raised a preliminary objection that the suit was fatally defective as the respondent was registered as Umoja Tena Inner Core Sacco Limited. The matter proceeded by written submissions. The court framed four issues. On the preliminary objection, it found the submission on the respondent's registered name fallacious and unsupported by evidence, failing for lack of particulars and linkage. On the appropriate union, the court held it is not the employer's duty to recommend a union, that choice is dictated by law, and that the claimant had adduced evidence of recruitment, correspondence and election of shop stewards, while the respondent, bearing the burden of proving illegitimacy, adduced none. The claimant was thus the appropriate union. Consequently the claimant was entitled to all relief sought. The court declared that the claimant had recruited a majority of the unionisable employees and was entitled to represent them, and ordered the respondent to forthwith sign a recognition agreement and effect union deductions and remittances. Costs were awarded to the claimant, costs following the cause.

Key legal issues

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01

Whether the suit was fatally defective for suing a non-existent entity

Holding

The preliminary objection failed because it was unsupported by evidence or particulars linking the alleged registered name to the claim.

Reasoning

The respondent contended the claim should be struck out because it was registered as Umoja Tena Inner Core Sacco Limited, not Utimo Sacco Society Ltd. The court found the submission fallacious as it was not backed by any evidence; no documentary or other evidence demonstrated the registered entity or its linkage to the claim. Without particulars and linkage, the objection could not stand.

p. 3
02

Whether the claimant was the appropriate union to represent the respondent's employees

Holding

The claimant established legitimacy through evidence of recruitment, correspondence and election of shop stewards, and is the appropriate union; the employer cannot dictate which union represents employees.

Reasoning

The court held that choice of union is dictated by law, not by the employer's preference, and rejected the respondent's suggestion that the Transport & Allied Workers Union was the correct union. The claimant adduced documentation on recruitment, correspondence and election of leadership. The respondent, which bore the burden of proving lack of legitimacy, adduced none and merely rubbished the claimant's claim.

p. 4
03

Whether the claimant was entitled to the relief sought, including recognition and remittance of dues

Holding

Having been found to be the appropriate union with majority recruitment, the claimant was entitled to all relief as sought, including an order that the respondent sign a recognition agreement and remit union dues.

Reasoning

The court reasoned that issue 2 had been determined in the claimant's favour and the respondent had mounted no concrete defence. The claimant therefore carried the day and took all relief as sought: a declaration of majority recruitment, entitlement to represent the employees, and an order compelling execution of a recognition agreement with union deductions and remittances.

p. 4

Legal principles established

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  • It is not the employer's duty to suggest, opine or recommend the appropriate union for its employees; that is a matter dictated by law and by the employees' choice.
  • A preliminary objection must be backed by evidence and particulars; a mere allegation that a party is a non-existent entity without proof of linkage fails.
  • The burden of proving lack of legitimacy of a union's dealings with employees lies on the party asserting it.

Court orders

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  1. 1.Declaration that the claimant has recruited a majority of the unionisable employees of the respondent
  2. 2.Declaration that the claimant is entitled to represent the respondent's unionisable employees
  3. 3.Order that the respondent forthwith sign a recognition agreement and effect union deductions and remittances in favour of the claimant union
  4. 4.Costs of the claim borne by the respondent

Authorities

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Legislation

  • Labour Relations ActS.4(8)
  • Labour Relations Act

Cases cited (3)

  • Kenya Quarry and Mine Workers Union v Artstone Ltd
    Cause No. 6 of 1997
  • Kenya Building, Construction, Timber, Furniture and Allied Employees Union v Sat Jointers Ltd
  • Kenya Hotels and Allied Workers Union v Nairobi Serena Hotel
Jurisdiction invoked
Jurisdiction of the Industrial Court over trade disputes concerning recognition agreements and union dues (Labour Relations Act, 2007)

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 (Kenya) v Utimo Sacco Society Ltd [2014] KEELRC 914 (KLR)", Case Analysis (2013). Cause No. 2563 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/914/eng@2014-03-28

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