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ELRCDismissedELRC Cause (amended claim dated 14th November 2022; related to Nairobi ELRC Cause No. 2191 of 2016)· [2023] KEELRC 3191 (KLR)

Banking Insurance and Finance Union v Paramount Universal Bank Kenya Ltd (Cause E108 of 2022) [2023] KEELRC 3191 (KLR)

Employment and Labour Relations Court
5 December 2023
AJAbuodha Nelson Jorum
1,612 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 court dismissed a union's bid to force a bank to hand over employee lists, ruling only a review or appeal—not a fresh case—can fix the earlier ruling.

What this practically means

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Executive summary

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The Claimant, a registered trade union with a recognition agreement with the Kenya Bankers Association covering the Respondent bank, claimed it was entitled under section 49(2)(b) of the Labour Relations Act to be supplied with a list of unionisable employees (and companies from which such employees were outsourced) to enable it to seek an agency fee order from the Minister. It sought a declaration to that effect plus costs. The Respondent opposed, contending the suit was res judicata, having been directly and substantially in issue in Nairobi ELRC Cause No. 2191 of 2016, in which Makau J on 8th April 2021 declared the union entitled to agency fees but held that it was not for the Respondent to provide the list, the union having failed to plead and prove the list and a Minister's order. The court, sitting as a single judge, identified the sole issue as whether the Respondent should be ordered to furnish the list. While the court considered Makau J may have acted per incuriam - since section 49(2)(b) requires the list to be prepared by the employer - it held that a co-ordinate court cannot correct another judge's discretionary error; the only remedies are review or appeal to the Court of Appeal. The application not being a review, the court found itself 'hand tied' and dismissed the claim with no order as to costs on 5th December 2023.

Key legal issues

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01

Obligation to supply the list of unionisable employees for agency fee purposes

Holding

Section 49(2)(b) of the Labour Relations Act places the obligation to prepare and supply the list of employees on the employer, and the learned Judge in the prior suit appears to have acted per incuriam in holding otherwise

Reasoning

The court examined section 49 of the Labour Relations Act, which requires that a request to the Minister for an agency fee order be accompanied by a list of all employees prepared by the employer. On that reading, Makau J's contrary view in the earlier judgment was per incuriam. However, the court held that this error could only be corrected by review or appeal, not by a co-ordinate court in a fresh suit.

p. 4
02

Competence of the fresh claim to revisit the earlier judgment

Holding

The issues raised were decided by Makau J and can only be revisited on review or appeal to the Court of Appeal

Reasoning

The claimant's application sought an order directing the respondent to furnish lists of unionisable and outsourced employees. The court found the same issues were before Makau J in ELRC No. 2191 of 2016. Since the present application was not framed as a review, the court could not revisit the earlier discretionary ruling and the application had to be dismissed.

p. 4

Legal principles established

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  • Under section 49(2)(b) of the Labour Relations Act, the request to the Minister for an agency fee order must be accompanied by a list of all employees prepared by the employer in respect of whom the deduction is to be made
  • A court of co-ordinate jurisdiction cannot correct a discretionary error of another judge of equal rank; the remedy is review or appeal

Court orders

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  1. 1.The application/claim is dismissed with no order as to costs
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over the claim; the court declined to disturb a prior co-ordinate court decision

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 Paramount Universal Bank Kenya Ltd (Cause E108 of 2022) [2023] KEELRC 3191 (KLR)", Case Analysis (2023). ELRC Cause (amended claim dated 14th November 2022; related to Nairobi ELRC Cause No. 2191 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3191/eng@2023-12-05

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