Banking Insurance & Finance Union (Kenya) v Utimo Sacco Society Ltd [2014] KEELRC 914 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit was fatally defective for suing a non-existent entity
The preliminary objection failed because it was unsupported by evidence or particulars linking the alleged registered name to the claim.
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.
Whether the claimant was the appropriate union to represent the respondent's employees
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.
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.
Whether the claimant was entitled to the relief sought, including recognition and remittance of dues
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.
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.
Legal principles established
#- 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
#- 1.Declaration that the claimant has recruited a majority of the unionisable employees of the respondent
- 2.Declaration that the claimant is entitled to represent the respondent's unionisable employees
- 3.Order that the respondent forthwith sign a recognition agreement and effect union deductions and remittances in favour of the claimant union
- 4.Costs of the claim borne by the respondent
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over trade disputes concerning recognition agreements and union dues (Labour Relations Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.