Banking, Insurance & Finance Union (Kenya) v Maisha Bora Sacco Society Limited [2016] KEELRC 1749 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a recognition agreement is a prerequisite to a union representing its members
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
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.
Whether constitutional provisions (Articles 3, 22, 258, 159) confer standing on the union in a contractual dispute
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
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.
Legal principles established
#- 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
#- 1.Proceedings in this cause shall stop pending the determination of Cause No.1776 of 2014 on priority basis
- 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.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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.