Banking Insurance and Finance Union v Insurance Regulatory Authority (Cause E161 of 2022) [2025] KEELRC 2982 (KLR)

5. The claimant avers that the failure by the Respondent to grant access to the union to undertake a recruitment exercise is violation of the employees’ rights to freedom of association enshrined under Articles 36 and 41 of the Constitution besides sections 4 and 5 of the Labour Relations Act. This is besides Convention 98 of the Internal Labour Organization. In the absence of another union representing the employees, the claimant cannot be denied an opportunity to meet these employees. This conduct by the Respondent is ant-union. This bears in mind that these employees are all willing to join the union by fear reprisals and victimization or even termination of employment in the event of interacting with union oficials without permission by the employer. 6. The Claimant prays as follows; i. The Respondent be directed to allow the applicant/claimant access to potential members in its premises for purposes of recruitment and other lawful union activities outside working hours. ii. The recruitment shall be undertaken during tea break, lunch bread, before start of business and/or close of business and shall not in any event be timed to distract the normal performance of duties by potential members. iii. The Respondent and/or her agents be restrained and/or prohibited from victimizing, coercing and/or threatening and terminating the services of employees who joins and takes part in union activities as allowed under order (i) and (ii) above. iv. The Respondent to provide a list of all unionisable employees to the Claimant. v. Costs of the suit. 7. The Respondent in defence denies that it is an insurance company as alleged at paragraph 2 of the Claim and avers that it is a public entity established under Section 3 of the Insurance Act to inter alia supervise, regulate and administer and control the insurance sector. It therefore denies that the claimant is legally mandated to unionize the employees who are indeed public sector employees. Again, there is no law conferring a monopoly on the claimant to unionize employees in the insurance sector and in any event, if this monopoly exists, it would infringe the right of insurance sector employees’ contract to Articles 36 and 41 of Constitution as read with Sections 4 and 5 of the Labour Relation Act, 2007. 8. The Respondent further denies that it declined or continues to decline to grant the claimant access to their employees for recruitment and reiterate that these allegations are imaginary, malicious and in bad faith.It accuses the claimant of; i. Knowingly misleading the Honourable Court that the Respondent is an insurance company whose employees are unionisable by the Claimant; ii. Knowingly misleading the Honourable Court that the law has conferred upon the Claimant the status of 'sole trade union for employees in the insurance sector, iii. Falsely and maliciously misleading the Honourable Court that the Respondent's employees have been denied an opportunity to meet with union oficials, iv. Falsely and maliciously misleading the Honourable Court that the Claimant exercised reasonable diligence in seeking to access the Respondent's employees prior to filing the Statement of Claim; v. Falsely and maliciously misleading the Honourable Court, at Paragraphs 13 and 14 of the Statement of Claim, that the Respondent is 'anti-union' and that the Respondent's employees https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2982/eng@2025-10-22 2

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fear victimization and termination of Claimant's employment' if seen interacting with the claimant’s agents/stafi/representatives; 9. vi. Falsely and maliciously implying to the Honourable Court that its governing body had authorized recruitment of the Respondent's employees as alleged by the Claimant; vii. Falsely and maliciously misleading the Honourable Court that the Claimant's constitution recognizes the Respondent's employees as unionisable, despite the fact that the Respondent is a public entity established under the Insurance Act; and viii. Maliciously filing these proceedings without first referring the matter to arbitration as had been recommended in the Conciliator's letter dated 22nd June 2018. In regard to an invitation to conciliator, the Respondent avers that their stafi a republic oficers who are not unionisable by the claimant and in any event the claimant has not in any way disclosed to the Authority its operational structure, constitutive documents or explained the fact that Respondent employees’ interest would be represent by the claimant. This comes out thus; i. the efiecting and carrying out by a person not carrying on a banking business, of contracts for fidelity bonds, performance bonds, administration bonds, bail bonds or customs bonds or similar contracts of guarantee. ii. being contracts efiected by way of business (and not merely incidental to some other business carried out by the person afiecting them) in return for the payment of one or more premiums. iii. the efiecting and carrying out, by a body (not being a body carrying on a banking business) that carries on business which is insurance business apart from this paragraph, of capital redemption contracts. iv. the efiecting and carrying out of contracts to pay annuities on human life. v. takaful insurance business based on group participation guaranteeing each of the members against defined loss or damage; (e) micro-insurance business; 4 Insurance Act (Cap. 487) Kenya. vi. social insurance schemes; and vii. any business incidental to insurance business as so defined but does not include; a. business in relation to the benefits provided by a friendly society or trade union for its members or their dependants. b. business in relation to the benefits provided for its members or their dependants by an association of employees. 10. Therefore, the entire pleadings by the claimant do not raise any triable issues and are sca + ndalous, frivolous, vexatious and an abuse of the court process and should be dismissed with costs. 11. The issues for determination therefore are; 12. 1. Whether the claimant has any lawful claim against the Respondent. 2. Whether the claimant is entitled to the relief sought. 3. Who bears the costs of this cause. The 1st issue for determination is whether the claimant has any lawful claim against the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2982/eng@2025-10-22 3

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13. The claimant in their written submissions dated 15th February, 2025 reiterates their claim and seeks to rely on authority of Kenya Private universities Workers Union vs. Management University of Kenya at paragraph 24 and 25 where the court emphasized the need for continuous recruitment of members even by unions that do not have a recognition agreement with the union concerned. These should be allowed access to recruit members in line with Section 4(1) of Labour Relations Act, 2007, the Industrial Relation Charter and Articles 36 and 41 of the Constitution of Kenya, 2010. 14. The Respondent in rejoinder written submissions dated 11th March, 2025 reiterates their premilitary objection raised at paragraph 9 of the defence which objection diminishes the eficacy of this claim and proceedings in toto. This comes out as follows; i. No resolution of the Claimant's governing body has been annexed to the Statement of Claim to evidence the requisite authority to institute these proceedings, ii. The Statement of Claim is not supported by the report/findings of the Conciliator on the Conciliation process, contrary to Rule 5(1)(b)(i) of the Employment and Labour Relations Court (Procedure) Rules, 2016; and iii. The Statement of Claim is not supported by the minutes of any conciliation meeting, contrary to Rule 5(1)(b)(i) of the Employment and Labour Relations Court (Procedure) Rules, 2016. 15. This being the case, the claimant has no lawful cause against the Respondent. The Respondent misses out as an insurance company or being in the business of an insurance company. It is a statutory authority vested in the with the authority and mandate of regulating an supervising insurance companies and business. The claimant therefore lacked jurisdiction to recruit employees in this sector. This answers the 1st issue for determination. 16. On a finding of no relationship inter partes, the other issues for determination fall by the way side. They are not worthy of any determination. 17. I am therefore inclined to dismiss the claim with order that each party bears their costs of the same. DELIVERED, DATED AND SIGNED THIS 22ND DAY OF OCTOBER 2025. D. K. NJAGI MARETE JUDGE Appearances; Mr. Munoru for the Claimant Union. Miss Kirima instructed by Federation of Kenya Employer for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2982/eng@2025-10-22 4

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