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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 918 (KLR)

Banking Insurance & Finance Union (Kenya) v SMEP Microfinance Bank Limited [2020] KEELRC 918 (KLR)

Employment and Labour Relations Court
28 May 2020
HWHellen Wasilwa
1,403 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employer was ordered to deduct and remit union dues for members who joined the union, even while the recognition dispute remained undecided.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court on a Notice of Motion dated 31 December 2019, brought by a trade union (the Claimant) against its employer (the Respondent). The Claimant sought orders restraining the Respondent from harassing or intimidating its members, compelling the Respondent to deduct and remit union dues for 122 employees, and directing the Respondent to enter into a recognition agreement within 30 days, on the basis that it had recruited a simple majority of the unionisable employees under Section 54 of the Labour Relations Act. The Respondent, through a replying affidavit of its Head of Human Resource and Administration, maintained that the union had only 78 of 170 unionisable employees and therefore fell short of the simple majority required for recognition. The Claimant submitted it had recruited 159 members and later agreed to exclude 38 management staff, attaining about 69.7% of unionisable employees, and relied on authorities including KUCFAW v Eldomatt Supermarket, KPAWU v Expressions Flora and Kudheiha Workers Union v Aga Khan University Hospital. No submissions were filed by the Respondent. The court (Hellen Wasilwa, J) held that the dispute over the simple majority did not excuse the Respondent's failure to remit dues for members who had freely joined the union. It ordered the Respondent to henceforth deduct and remit union dues for such members pending the hearing and determination of the claim, reserved the recognition issue for the main claim, and awarded costs in the cause. The ruling was delivered in chambers via zoom on 28 May 2020.

Key legal issues

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01

Deduction and remittance of trade union dues

Holding

The Respondent was ordered to deduct and remit union dues for members who have freely joined the Union pending the hearing and determination of the Claim

Reasoning

The court found that the Respondent's assertion that the union lacked a simple majority did not answer the separate statutory obligation to deduct and remit dues for members who had freely joined the union. The court therefore granted that interim relief while leaving the recognition question for the main claim.

p. 3
02

Recognition agreement under Section 54 of the Labour Relations Act

Holding

The dispute over whether the union has recruited a simple majority of unionisable employees was reserved for determination in the main claim

Reasoning

The parties disputed membership numbers: the Claimant claimed 122 members (about 69.7% of 170-175 unionisable employees), while the Respondent claimed only 78 of 170 unionisable employees. The court did not resolve this factual dispute at the interlocutory stage and deferred recognition to the main claim.

p. 3

Legal principles established

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  • An employer is obliged to deduct and remit union dues for employees who have freely joined the union notwithstanding a dispute over recognition

Court orders

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  1. 1.That the Respondents do henceforth deduct and remit union dues for members who have freely joined the Union pending the hearing and determination of the Claim
  2. 2.That the issue of recognition be determined in the Main Claim
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 36(1)
  • Constitution of KenyaArticle 41(2)(c)
  • Judicature ActSection 10
  • High Court (Practice and Procedure) RulesRule 3(1) and (2)
  • Employment and Labour Relations Court ActSection 12
  • Labour Relations ActSections 4 and 5
  • Labour Relations ActSections 54(1) and (7)
  • Labour Relations ActSection 48(3)
  • Labour Relations ActSection 48(8)

Cases cited (3)

  • KUCFAW Vs ELDOMATT Supermarket Limited
    (2014) eKLR
  • Kenya Plantation and Agricultural Workers Union Vs Expressions Flora Limited
    (2013) eKLR
  • Kudheiha Workers Union Vs Aga Khan University Hospital
    (2015) eKLR
Jurisdiction invoked
Articles 36(1) and 41(2)(c) of the Constitution of Kenya; Section 12 of the Employment and Labour Relations Court Act; Sections 4, 5, 54(1) and (7) of the Labour Relations 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 SMEP Microfinance Bank Limited [2020] KEELRC 918 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/918/eng@2020-05-28

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