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ELRCStruck OutNot stated in judgment· [2019] KEELRC 1815 (KLR)

Kenya National Union Of Nurses (K.N.U.N) v National Industrial Credit (NIC) Bank [2019] KEELRC 1815 (KLR)

Employment and Labour Relations Court
3 April 2019
HWHellen Wasilwa
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 struck out a nurses' union's claim against NIC Bank because disputes about bank accounts are commercial matters, not employment disputes.

What this practically means

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Executive summary

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The Respondent, National Industrial Credit (NIC) Bank, raised a preliminary objection to the Kenya National Union of Nurses' claim, contending that the Employment and Labour Relations Court lacked jurisdiction under Section 12 of the ELRC Act, 2011 because the dispute was commercial rather than an employment and labour relations dispute, and that the suit was an abuse of process. The Claimant had alleged fraudulent diversion of union funds into Account No. 1004699676 at the Bank's Eldoret Branch and sought orders to freeze the account and quash instruments used in opening it. It opposed the objection through Grounds of Opposition alleging contravention of the Labour Relations Act. The Respondent relied on the 'Lilian S' jurisdiction principle, the Supreme Court's decision in Samuel Kamau Macharia, and Republic vs. Karisa Chengo on the distinct jurisdictions of the ELRC, ELC and High Court. The Claimant failed to file submissions despite directions. The Court found that the Claimant had not demonstrated that union dues were being diverted, by whom, or whether the funds emanated from union dues, and had not enjoined the alleged perpetrators. The Bank was not sued in any employment or labour relations capacity. The Court held the matter to be a purely commercial dispute outside its jurisdiction, allowed the preliminary objection, struck out the claim and awarded costs to the Respondent.

Key legal issues

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01

Jurisdiction of the ELRC over the claimant's complaint regarding union funds held in a bank account

Holding

The Court lacks jurisdiction; the dispute is commercial, not an employment and labour relations dispute within Section 12 of the ELRC Act

Reasoning

The claimant alleged fraudulent diversion of union dues into an account at the respondent's Eldoret Branch but failed to demonstrate that union dues were in fact being diverted, or by whom, and did not enjoin the alleged perpetrators. The respondent bank was not sued in the capacity of employer, employee, employers' organisation or trade union. In the absence of such confirmation the dispute is purely commercial, outside Article 162(2)(a) and Section 12 of the ELRC Act, and the preliminary objection succeeds.

p. 3

Legal principles established

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  • A court must down its tools once it finds it lacks jurisdiction
  • The ELRC, ELC and High Court are distinct and autonomous courts exercising different and distinct jurisdictions

Court orders

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  1. 1.The Preliminary Objection by the Respondent is allowed
  2. 2.The Claimant's Claim is struck out
  3. 3.Costs of the suit awarded to the Respondent

Authorities

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Legislation

  • Industrial Court ActSection 12
  • Employment and Labour Relations Court ActSection 12(1)
  • Labour Relations Act, 2007Sections 39, 42(1), 47(1)(a), 48, 50(1) and (9)
  • Constitution of KenyaArticles 159(2)(d), 162(2)(a), 165(5)

Cases cited (3)

  • The Owners of Motor Vessel Lilian "S" vs. Caltex Oil Kenya Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Republic vs. Karisa Chengo & 2 Others
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya and Section 12 of the Employment and Labour Relations Court Act, 2011

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, "Kenya National Union Of Nurses (K.N.U.N) v National Industrial Credit (NIC) Bank [2019] KEELRC 1815 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1815/eng@2019-04-03

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