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ELRCPartially AllowedNot stated in the excerpt· [2020] KEELRC 1544 (KLR)

Kenya National Union of Nurses v Eco Bank Kenya Limited & 8 others [2020] KEELRC 1544 (KLR)

Employment and Labour Relations Court
21 February 2020
5,179 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered two unauthorized union branch bank accounts closed and branch officials to account for millions in union dues, but cleared the banks of wrongdoing.

What this practically means

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Executive summary

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The Claimant union alleged that the 4th to 9th Respondents, its branch officials, fraudulently caused the opening of two unauthorized bank accounts - Account No. 0073205026433901 at the 1st Respondent's Eldoret Branch and Account No. 1177568497 at the 2nd Respondent's Lamu Branch - into which union dues from members were diverted in breach of Section 48 of the Labour Relations Act and Article 41 of the Constitution. It sought permanent closure of the accounts, transfer of funds to its gazetted accounts, quashing of the account-opening instruments, refunds, and investigation orders. The 4th to 7th Respondents filed a defence and counter-claim asserting the accounts were lawful branch accounts opened under Chapter XI of the Union Constitution, and counter-claimed for closure of the union's own Co-operative Bank account as illegal. The banks denied wrongdoing and disclaimed any interest in the funds. The court framed four issues. It held the branch officials had locus standi to open branch accounts, being registered branch officials; but that the accounts were unlawfully operated because branch accounts must account to the national treasurer and check-off dues must go to the national headquarters account, and no evidence of compliance was produced. No fraud or conspiracy by the banks was proved, the account opening having been procedural. The court found for the Claimant on a balance of probabilities, ordering permanent closure of both accounts, transfer of funds to the gazetted account, quashing of the account-opening instruments, and that the 4th to 9th Respondents jointly account for Kshs.9,686,463.15 and Kshs.840,000 respectively. The claim against the banks was dismissed with no order for costs; costs were awarded against the 3rd to 9th respondents.

Key legal issues

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01

Locus standi of branch officials to open bank accounts

Holding

The 4th to 9th Respondents, as registered branch officials under Chapter XI part 2 of the Union Constitution and per the Registrar of Trade Unions' extract, had the capacity to open the accounts as branch accounts

Reasoning

The Union did not dispute that the 4th to 9th Respondents were branch officials. A certificate of registration for the Uasin Gishu Branch dated 29 October 2013 and a Registrar's extract listing them as branch officials were produced. Chapter XI part 2 of the Union Constitution empowers branch treasurers to open branch accounts. Accordingly, they had locus standi, and the accounts are distinct from the national accounts.

p. 6
02

Legality of the handling of the branch accounts

Holding

The accounts were handled illegally because branch funds must be accounted for and remitted to the national headquarters account, and no evidence of compliance was produced

Reasoning

The Union Constitution (Chapter XI parts 2 and 3) requires branch treasurers to account to the national treasurer, and provides that check-off monies shall not be paid into branch accounts but sent to the national headquarters account. The branch officials produced no evidence of compliance with these provisions, so the accounts were run in contravention of the Union Constitution.

p. 8
03

Conspiracy/fraud by the banks

Holding

No fraud or conspiracy by the 1st and 2nd Respondent banks was proved; they followed standard account-opening procedure

Reasoning

The banks attached the account opening forms duly filed by the branch officials and had no interest in the funds. The Claimant tendered no evidence of fraudulent dealings. The court found the opening was systematic and procedural, though the banks ought also to have called for the Union Constitution on maintenance of branch accounts.

p. 8

Legal principles established

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  • Branch officials duly registered with the Registrar of Trade Unions have locus standi to open branch bank accounts for the union
  • Branch accounts may not be operated independently of the national gazetted union account; officials must account for branch funds to the national headquarters
  • Fraud must be proved by evidence; mere allegation without proof fails

Court orders

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  1. 1.Permanent closure of the Bank Account Numbers 007320502643901 and 1177568497 held at the 1st and 2nd Respondent banks respectively
  2. 2.Transfer of funds held in the two accounts forthwith to the Claimant's gazetted bank account (Barclays Bank, Queensway Branch, Account No. 20277G5079)
  3. 3.Quashing of the instruments used in account opening for the two accounts
  4. 4.4th to 7th Respondents to jointly account for all funds transacted in Bank Account 007320502643901 being Kshs.9,686,463.15 and refund any money not properly spent in accordance with the Union's Constitution
  5. 5.8th to 9th Respondents to jointly account for all funds transacted in Bank Account 1177568497 being Kshs.840,000
  6. 6.Claimant awarded costs of the Claim to be paid by the 3rd to 9th respondents

Authorities

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Legislation

  • Labour Relations Act, No. 14 of 2007Sections 37, 39, 47(1)(a), 48(1),(2),(3), 48(2)(a-b)(i),(ii), 49, 50; Parts VI, VII, VIII, IX
  • Employment Act, 2007Section 19(6)
  • Banking ActNot specified
  • Constitution of Kenya, 2010Articles 36, 41, 41(2)(c)
  • Kenya National Union of Nurses Registered ConstitutionChapters XI (1),(2),(3),(4), XIII, XVII(5), XX, XXI
  • Trade Union Accounts RegulationsNot specified

Cases cited (4)

  • Lawrence Nyaguti Ochieng and 7 Others v Union of Kenya Civil Servants & 3 Others
    (2015) eKLR
  • Central Bank of Kenya v Trust Bank Limited & 4 Others
    (1996) eKLR
  • Evans Kidero Speaker of Nairobi City County Assembly and Another
    (2018) eKLR
  • Kinyanjui Kamau v George Kamau Njoroge
    (2015) eKLR
Jurisdiction invoked
Section 47(1)(a) of the Labour Relations Act, No. 14 of 2007

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 v Eco Bank Kenya Limited & 8 others [2020] KEELRC 1544 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1544/eng@2020-02-21

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