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ELRCOtherNot stated (arising from a Cause determined by judgment of 24 January 2020)· [2020] KEELRC 154 (KLR)

Banking, Insurance And Finance Union v Middle East Bank (K) Limited [2020] KEELRC 154 (KLR)

Employment and Labour Relations Court
6 November 2020
RSRadido Stephen
698 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Employment Court refused to hear a union's emergency application because the events it complained about happened after its original case had already been decided.

What this practically means

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Executive summary

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The Union had earlier obtained a judgment on 24 January 2020 declaring four named employees unionisable and covered by the 2017 collective bargaining agreement, with awards of arrears of salaries and allowances. Following that judgment, the Respondent transferred one of the employees, David Onamu, to the Liabilities Department as a Relationship Officer at Head Office on or around 27 February 2020. Onamu acknowledged the transfer but raised a claim for a disturbance allowance. During the COVID-19 pandemic he was sent on leave, and on 10 July 2020 the Respondent placed him on a performance improvement programme, citing unsatisfactory performance in Quarter 2, 2020, with weekly reviews. His supervisor followed up with an email requiring him to show how he would meet his expected outcomes, warning of action under the human resource guidelines on performance. Fearing for his job security, the Union filed a Motion dated 12 August 2020 seeking ex-parte interim orders restraining termination arising from the performance management programme, orders stopping performance appraisals on unionisable employees, and payment of a disturbance allowance of Kshs 310,912/- under clause AB30 of the collective bargaining agreement. The Respondent filed a replying affidavit in opposition. However, on 30 September 2020 the Union wrote to the Deputy Registrar seeking withdrawal of the Motion because it was not properly filed. The Court agreed that the facts anchoring the Motion arose after the underlying cause had been determined, and in light of the Union's desire and COVID-19 protocols, marked the Motion as withdrawn with no order on costs. The Ruling was directed to be uploaded on the e-filing portal.

Key legal issues

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01

Whether a Motion founded on facts arising after judgment in the underlying cause was properly before the Court

Holding

The Motion was not properly filed because the facts anchoring it arose after the Court had determined the cause of action in the prior judgment; the Union itself sought withdrawal.

Reasoning

The Union acknowledged in a letter to the Deputy Registrar dated 30 September 2020 that it wished to withdraw the Motion because it was not properly filed. The Court agreed, noting the Motion's factual basis arose after the 24 January 2020 judgment. In light of that desire and COVID-19 protocols, the Court marked the Motion as withdrawn with no order on costs. No substantive determination was made on any of the interim reliefs sought.

p. 2

Legal principles established

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    Court orders

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    1. 1.The Motion dated 12 August 2020 marked as withdrawn with no order on costs
    2. 2.This Ruling to be uploaded on the e-filing portal
    Jurisdiction invoked
    Jurisdiction not expressly invoked in the Ruling; the Motion was filed in a cause already determined by the Court

    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 And Finance Union v Middle East Bank (K) Limited [2020] KEELRC 154 (KLR)", Case Analysis (2020). Not stated (arising from a Cause determined by judgment of 24 January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/154/eng@2020-11-06

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