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ELRCOtherCause No. 218 of 2014 (referenced in judgment; the redundancy claim against Maisha Bora Sacco Society Ltd)· [2016] KEELRC 1749 (KLR)

Banking, Insurance & Finance Union (Kenya) v Maisha Bora Sacco Society Limited [2016] KEELRC 1749 (KLR)

Employment and Labour Relations Court
20 January 2016
2,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a union without a recognition agreement may still pursue members' redundancy claims, but the question of its standing must be settled in a related pending case first.

What this practically means

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Executive summary

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The claimant trade union, BIFU, sued Maisha Bora Sacco Society Limited alleging unprocedural, unjustified redundancy of 63 unionised employees. At the hearing the respondent raised a preliminary objection contending that, absent a recognition agreement under section 54(3) of the Labour Relations Act and without a CBA, the claimant lacked locus standi to maintain the suit, relying on LSK v Commissioner of Lands and CWU v Safaricom. The claimant countered that it is a registered trade union under section 22 of the Act, that check-off deductions had been made under section 48, that a recognition suit (Cause No.1776 of 2014) was already pending and filed first, and that Articles 3, 22 and 258 of the Constitution confer representative standing. The court framed two issues: whether a recognition agreement is a prerequisite to a union representing its members, and whether the claimant has locus standi without one. It held that recognition is required for a union to represent unionisable employees against an employer, and entitlement to a recognition agreement turns on the simple-majority threshold in section 54, a factual question requiring evidence after trial. It held constitutional standing provisions apply to Bill of Rights petitions, not this contractual/statutory dispute. Declining to terminate the suit, the court stayed proceedings in this cause pending priority determination of the recognition suit, with a hearing date to be allocated within 14 days, and put the hearing in abeyance.

Key legal issues

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01

Whether a recognition agreement is a prerequisite to a union representing its members

Holding

Recognition is required for a union to act as representative of unionisable employees vis-à-vis an employer; whether the union qualifies under section 54 is a factual matter for trial, and the recognition question is pending in Cause No.1776 of 2014

Reasoning

The court defined a recognition agreement under the Labour Relations Act and held that recognition by the employer is regulated in law. Entitlement depends on the union representing a simple majority of unionisable employees, a question of fact requiring evidence. Since a suit seeking recognition was already pending and filed first in time, its determination would impact these proceedings, warranting a stay rather than dismissal.

p. 4
02

Whether constitutional provisions (Articles 3, 22, 258, 159) confer standing on the union in a contractual dispute

Holding

No - constitutional standing provisions apply to enforcement of the Bill of Rights in a petition; this dispute is contractual/statutory and is governed by the Labour Relations Act framework

Reasoning

The court held that reliance on Articles 3, 22 and 159 must be contextualised: the Bill of Rights enforcement route applies to petitions alleging rights violations, whereas this claim concerns redundancy and contract, matters regulated by statute and by the court's jurisdiction under Article 162 and section 12 of the ELRC Act. Representation before the court is governed by section 22 of the ELRC Act, and a trade union filing pleadings must comply with the Labour Relations Act.

p. 3

Legal principles established

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  • For a trade union to have standing with an employer as representative of unionisable employees, recognition by the employer is required, and entitlement to a recognition agreement depends on compliance with section 54 of the Labour Relations Act (a simple majority), a matter of fact requiring evidence after trial.
  • Preliminary objections on standing should be determined first to avoid proceeding on serious legal technicalities (Mukisa Biscuits principles).

Court orders

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  1. 1.Proceedings in this cause shall stop pending the determination of Cause No.1776 of 2014 on priority basis
  2. 2.The Registrar of the Court to direct the Deputy Registrar Nairobi to allocate a hearing date in 14 days in Cause No.1776 of 2014
  3. 3.This file be placed together with Cause No.1776 of 2014 for follow up with regard to the determination of the issue of locus standi of the claim
  4. 4.Hearing put in abeyance herein
Jurisdiction invoked
Article 162 of the Constitution read together with section 12 of the Employment and Labour Relations 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 (Kenya) v Maisha Bora Sacco Society Limited [2016] KEELRC 1749 (KLR)", Case Analysis (2016). Cause No. 218 of 2014 (referenced in judgment; the redundancy claim against Maisha Bora Sacco Society Ltd). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1749/eng@2016-01-20

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