Banking Insurance Finance Union (K) v Kenya Revenue Authority [2018] KECA 152 (KLR)
The bottom line
#Kenya's Court of Appeal ruled KRA must deduct union dues for BIFU members, confirming courts cannot invent reasons to deny workers' union claims.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge rightly addressed the question of whether the respondent was a financial institution, or whether the issue was whether the appellant had recruited the requisite number of the respondent's employees and so was entitled to an order compelling implementation of the check off system
- 2.Whether the respondent satisfied the court, as required by section 49(2) of the Trade Disputes Act (repealed), that it was not bound to comply with the Registrar of Trade Unions' notice
Key legal issues
#Framing of the issue for determination on appeal
The central issue was whether the respondent was duty bound to comply with the union's and the Registrar's check-off notices, not whether it was a financial institution within the appellant's constitutional mandate.
The appellant had recruited over 900 of the respondent's employees, obtained ministerial approval and a gazette notice for check-off deductions, and the Registrar had issued a compliance notice. The High Court instead defined the respondent's status under section 2 of the Banking Act, addressing an issue not raised in the pleadings or the replying affidavit, and thus misdirected itself.
Burden under section 49(2) of the repealed Trade Disputes Act
The employer was given a final opportunity to satisfy the court why it was not bound to comply with the union's or Registrar's notice; its reasons (rivalry with KUCFAW, insufficiency of membership, essential service, ineligible or deceased members) were not controverted findings against it and were insufficient.
Section 49(2) allows the employer to satisfy the court that it was not bound to comply or that failure was due to causes beyond its control. The judge properly analysed the respondent's complaints, finding the union rivalry settled by Ojwang J's earlier decision and no particulars given of management or deceased members, and that the respondent was not an essential service provider.
Extraneous reasons for declining mandamus
The reason that the respondent was not a financial institution was nowhere set out in the respondent's affidavit and was not advanced as a reason for refusal; the judge could not rely on it to decline the order.
The replying affidavit of Mr. Micheal Onyura did not disclose the financial-institution complaint. Although the reason may have been correct in law, a court deciding an application for mandamus under section 49 must be satisfied with the employer's own reasons and cannot construct a disqualifying reason itself. Taking that extraneous matter into account vitiated the decision.
Legal principles established
#- Under the proviso in section 49(2) of the repealed Trade Disputes Act, an employer resisting a Registrar's check-off notice must itself satisfy the court that it was not bound to comply; the court may not, 'out of creativity and craft', supply a reason of its own upon which to decline the order.
- A first appellate court will interfere where the trial judge takes into account extraneous matters not raised in the pleadings or affidavits and thereby arrives at a wrong conclusion.
Court orders
#- 1.The judgment in HCCC Misc. Application No. 1683 of 2004 delivered on 22nd September 2008 is set aside and substituted with a judgment in favour of the appellant as prayed for in its Notice of Motion
- 2.The appellant is awarded the costs of and incidental to this appeal as well as costs in HCCC Misc. Application No. 1683 of 2004
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCC Misc Application No. 1683 of 2004
- Jurisdiction invoked
- First appellate jurisdiction under the Constitution and the Appellate Jurisdiction Act (appeal from the High Court)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
it was not for the court, out of creativity and craft, to establish a reason upon which to decline to grant the order sought, even though the reason relied upon may well be correct.
We are satisfied that the learned judge took into account matters that he ought not to have considered, and in so doing arrived at the wrong conclusion
the appeal is allowed with costs to the appellant.
The Judgment in HCCC Misc. Application No. 1683 of 2004 delivered on 22 nd September, 2008 is hereby set aside and substituted with a Judgment in favour of the appellant as prayed for in its Notice of Motion dated 15 th March, 2005.
Issues in the judgment
#The motion is described as dated 16th March 2005 in the opening paragraph but the final orders refer to a Notice of Motion dated 15th March 2005.
The judgment variously refers to section 49 of the Trade Unions Act and section 49 of the Trade Disputes Act (repealed) when describing the same provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance Finance Union (K) v Kenya Revenue Authority [2018] KECA 152 (KLR)", Case Analysis (2018). Civil Appeal No. 255 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/152/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.