Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherCause No 890 of 2019· [2024] KEELRC 2370 (KLR)

Banking Insurance and Finance Union v SMEP Microfinance Bank Limited (Cause 890 of 2019) [2024] KEELRC 2370 (KLR)

Employment and Labour Relations Court
27 September 2024
4,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to recognise a trade union on stale numbers, ordering a Labour officer head count because employer-handled resignations that bypassed the union were irregular.

What this practically means

#

Executive summary

#
The Claimant, a registered trade union, sued the Respondent microfinance bank seeking declarations that it was entitled to union dues from 122 members and had attained a simple majority under section 54(1) of the Labour Relations Act, an order for deduction and remittance of outstanding dues, and an order compelling the Respondent to execute a recognition agreement within 30 days. The Respondent denied the union had attained simple majority, asserting that of the 158 recruited employees, 38 were managers, 28 had formally withdrawn, 15 had resigned from employment, one was dismissed and others' status was unclear, leaving only 78 active members out of 170 unionisable employees. The parties disposed of the matter by written submissions. The court framed a single issue: whether the Claimant had attained simple majority under section 54. It held that the purported withdrawals were irregular because the Respondent never forwarded resignation notices to the union as required by section 48(8), and that they appeared triggered by the Respondent's own letter to employees. However, given that nearly five years had elapsed since filing and the situation on the ground had changed, the court found it would be unfair to order remittance of dues for employees who may have left. Instead of making final orders on recognition and dues, it directed a Labour officer to conduct a head count of unionisable employees currently in the Respondent's employment and submit a report within 60 days, with the matter to be mentioned on 25th November 2024 for further directions. The court encouraged the parties to cooperate in recruitment and ultimately sign a recognition agreement. No costs order was made.

Key legal issues

#
01

Whether the Claimant union had attained a simple majority of unionisable employees under section 54 of the Labour Relations Act so as to be entitled to recognition

Holding

The court could not finally determine simple majority because the parties disputed the number of unionisable members (122 vs 78) and time had passed; a fresh head count by a Labour officer was ordered

Reasoning

The Respondent claimed 78 active members out of 170 unionisable employees, asserting the rest were managers, had withdrawn or exited employment. The Claimant maintained 122 out of 175 members, with withdrawals never served on the union as required by section 48(8). Noting the lapse of almost five years and changed circumstances, the court directed a head count to establish current unionisable numbers before making final orders on recognition and dues.

p. 8
02

Validity of the purported member resignations and withdrawals

Holding

The withdrawals were irregular because the Respondent never served resignation notices on the union as required by section 48(8), and they appeared triggered by the Respondent's own letter to employees

Reasoning

The court noted the union was unaware of the resignations at filing and only saw them in the response filed in 2022. It observed the sudden withdrawals followed the Respondent's letter of 27th November 2019 asking employees to confirm deductions, and relied on the Transfleet decision condemning failure to forward resignation notices to the union.

p. 8

Legal principles established

#
  • An employer shall recognise a trade union for collective bargaining if it represents a simple majority of unionisable employees
  • An employer must forward a copy of any notice of union resignation he receives to the trade union, failing which purported withdrawals cannot defeat recognition
  • Non-compliance with sections 48(6) and (8) of the Labour Relations Act renders employer-mediated withdrawals irregular
  • Where membership numbers have become uncertain over time, the court may direct a Labour officer's head count before determining simple majority for recognition

Court orders

#
  1. 1.That the Labour officer to conduct a head count of unionisable employees currently in the respondent's employment and submit a report to the Court within 60 days of this order to enable the court make final orders in respect of the dispute
  2. 2.That the matter be mentioned on 25th November, 2024 for further directions

Authorities

#

Legislation

  • Labour Relations Actsection 54 (recognition of trade unions; simple majority)
  • Labour Relations Actsection 48 (deduction and remittance of union dues)
  • Labour Relations Actsection 48(8) (employer to forward copy of resignation notice to trade union)
  • Employment Act, 2007section 19 (deduction of wages)
  • Constitution of Kenya, 2010article 41 (labour relations rights)

Cases cited (8)

  • KUCFAW v Eldomat Supermaket Limited
    [2014]
  • Kenya Plantation And Agricultural Workers Union v Expressions Flora Limited
    [2013] eKLR; Cause Number 11 of 2012 (2013)
  • Cello Thermoware Limited -v- Kenya Union of Commecial Food and Allied Workers
    Civil Appeal 120 of 2019
  • Civicon Limited v Amalgamated Union Of Kenya Metal Workers
    [2016] eKLR
  • KUCFAW v Jade Collection Limited
    [2017] eKLR
  • Tailors & Textile Workers Union v Global Apparels EPZ Limited
  • Kenya Quarry and Mine Workers Union v Transfleet Limited
    [2021] eKLR
  • Kenya Plantation & Agricultural Workers Union v Beauty Line Limited
    (Employment and Labour Relations Cause E007 of 2023) [2023] KEELRC 2231 (KLR) (28 September 2023) (Ruling)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over trade union recognition and union dues disputes under the Labour Relations Act, No. 14 of 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Banking Insurance and Finance Union v SMEP Microfinance Bank Limited (Cause 890 of 2019) [2024] KEELRC 2370 (KLR)", Case Analysis (2024). Cause No 890 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2370/eng@2024-09-27

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