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ELRCPartially AllowedCause No 890 of 2019· [2020] KEELRC 282 (KLR)

Banking Insurance & Finance Union (Kenya) v Smep Microfinance Bank Limited [2020] KEELRC 282 (KLR)

Employment and Labour Relations Court
27 October 2020
HWHellen Wasilwa
1,065 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 found an employer in contempt for failing to remit union dues, but spared employees who had validly resigned.

What this practically means

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Executive summary

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The Claimant Union moved the Court by Notice of Motion dated 10/7/2020 seeking committal of the Respondent's Chief Executive Officer, Symon Kamore, to civil jail for six months for contempt of the Court's orders of 28/5/2020, which directed the Respondent to deduct and remit union dues for members who had joined the union pending the hearing of the claim. The Union also sought an order for immediate deduction of union dues from 35 members alleged to have withdrawn from the union without proof of withdrawal in the manner contemplated by Section 48 of the Labour Relations Act. The Respondent, through a Replying Affidavit of its Head of Human Resource and Administration, Rose Chepkemoi Bii, asserted that the employees concerned had resigned and that their resignation notices had been forwarded to the Union as required by Section 48(8) of the Labour Relations Act, which prescribes no particular mode of notification, and that deducting dues from them would constitute an unfair labour practice under Article 41 of the Constitution and Section 19 of the Employment Act. After considering written submissions, the Court held that although the issue of the 35 resignations had not been before it when the order of 28/5/2020 issued, the Respondent had failed to remit dues even for the remaining members. It found the Respondent in contempt of the Court's orders and liable for punishment. The judgment as delivered does not set out formal final orders, costs, or an express committal.

Key legal issues

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01

Whether the Respondent was in contempt of the orders of 28/5/2020

Holding

Yes - the Respondent disobeyed the order by failing to remit union dues, including for the members who had not withdrawn

Reasoning

The Court noted that its order of 28/5/2020 directed the Respondent to deduct and remit union dues for members who joined the union. The resignation of 35 members was not before the Court when the order issued, and the Respondent did not remit even dues for the remaining members. Non-compliance was therefore established and contempt lay.

p. 2
02

Whether the 35 employees who withdrew are exempt from union dues deduction

Holding

Effectively yes for those who validly resigned, since notification was made under Section 48(8) of the Labour Relations Act

Reasoning

The Respondent's Head of Human Resource deponed that 28 emails and letters of resignation from employees were forwarded to the Union as required under Section 48(8), and that the section prescribes no particular mode of notification. The Court accepted that the resignation issue was not before it when the earlier order was made.

p. 2

Legal principles established

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  • A party who disobeys a court order directing deduction and remittance of union dues is in contempt of court and liable for punishment

Court orders

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  1. 1.Finding that the Respondent disobeyed the Court's orders of 28/5/2020 and is in contempt of court and liable for punishment

Authorities

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Legislation

  • Labour Relations ActSection 48
  • Labour Relations ActSection 48(8)
  • Constitution of Kenya, 2010Article 41
  • Employment ActSection 19

Cases cited (3)

  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    [2013] eKLR
  • Board of Governors Moi High School Kabarak v Malcolm Bell & another
    [2013] eKLR
  • Tailors & Textile Workers Union v Global Apparel EPZ Limited; Fidelis Omwamba Onsingo & 6 Others (Proposed Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Contempt jurisdiction of the Employment and Labour Relations Court in relation to its orders issued on 28/5/2020 in the pending claim

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 Smep Microfinance Bank Limited [2020] KEELRC 282 (KLR)", Case Analysis (2020). Cause No 890 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/282/eng@2020-10-27

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