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ELRCDismissedNotice of Motion dated 27th April 2016· [2016] KEELRC 975 (KLR)

Banking Insurance & Finance Union (Kenya) v Pesa Transact Limited [2016] KEELRC 975 (KLR)

Employment and Labour Relations Court
8 July 2016
LNLINNET NDOLO
1,195 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused a union's bid to force dues deduction and recognition before a full trial, ruling interlocutory orders cannot replace the main hearing.

What this practically means

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Executive summary

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This is a ruling on the Claimant union's Notice of Motion dated 27th April 2016 seeking interlocutory orders compelling the Respondent to deduct and remit union dues for unionisable employees who signed check-off forms, to execute a Recognition Agreement, and prohibiting the Respondent from intimidating or terminating the employment of the union's members. The Claimant, a union for the banking and financial sector, asserted that 51 employees had joined it by January 2015 and a further 52 by February 2016, and that the Respondent had failed to deduct and remit dues and had harassed members into revoking membership. The Respondent, a telecommunications consultancy operating financial service kiosks rather than a regulated financial institution, disputed the union's relevance to its sector, contested the membership numbers, alleged that some employees were misled or coerced into joining, and claimed it was remitting dues for verified members. The Conciliator appointed by the Cabinet Secretary for Labour had reported that the union had not attained the simple majority required for recognition. The court framed a single issue: whether the Claimant had made out a prima facie case for the interlocutory orders. Holding that the affidavits raised disputed factual allegations requiring testing at a full hearing, and that the prayers in the application were substantively similar to those in the Memorandum of Claim so that granting them would decide the claim at the interlocutory stage, the court declined the application with costs in the cause and directed the parties to set the main claim for hearing on a priority basis.

Key legal issues

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01

Whether the Claimant established a prima facie case warranting interlocutory orders for union dues deduction, recognition and protection against intimidation

Holding

No - the application was declined because the prayers were substantively similar to the final relief in the Memorandum of Claim and the factual disputes required a full hearing

Reasoning

The court observed that the affidavits contained a wide range of accusations and counter-accusations, including disputes over the number of members, coercion of employees, and revocations of membership, which could only be tested at trial. Comparing the prayers in the application with those in the Memorandum of Claim, the court found them substantively similar, meaning the application sought to preempt the main claim. Accordingly, the application was declined, costs in the cause, and the main claim set for priority hearing.

p. 3

Legal principles established

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  • Interlocutory orders will not be granted where the relief sought in the application is substantively identical to the final relief in the claim, as that would decide the suit in advance of trial
  • Contested factual allegations deponed to in affidavits must be tested at a full hearing, not resolved on an interlocutory application

Court orders

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  1. 1.The Claimant's Notice of Motion dated 27th April 2016 is declined with costs in the cause
  2. 2.Parties directed to set the main claim for hearing on priority basis
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes and employment relations (inherent in the Memorandum of Claim and application; no specific provision cited in the ruling)

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 Pesa Transact Limited [2016] KEELRC 975 (KLR)", Case Analysis (2016). Notice of Motion dated 27th April 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/975/eng@2016-07-08

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