Banking Insurance and Finance Union v SMEP Microfinance Bank Limited [2020] KEELRC 19 (KLR)
The bottom line
#Kenya's Employment Court set aside a contempt finding against SMEP Microfinance Bank after discovering it had been ordered to deduct union dues for 35 workers who had left the union.
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 application dated 6th November, 2020 meets the grounds for review under Rule 33 of the ELRC (Procedure) Rules, in particular error apparent on the face of the record
- 2.Whether the respondent should be found not in contempt of the order of 28th May, 2020 requiring remittance of union dues
Key legal issues
#Whether the contempt ruling of 27th October, 2020 should be reviewed
The ruling was reviewed on the ground of error apparent on the face of the record and omission of material facts, and the respondent was found not to be in contempt.
At the sentencing hearing on 29th October, 2020 it emerged that 35 of the employees in respect of whom remittance was ordered had ceased to be union members. Had this been addressed before the contempt ruling, it would have been apparent that the direction to remit union dues for them was made in error. The court, having itself directed the filing of a review application, found sufficient cause under Rule 33 and allowed the review.
Legal principles established
#- A review may be allowed under Rule 33 upon discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, provided the application is made without unreasonable delay.
- A review lies to correct an apparent error or omission that is self-evident and requires no elaborate argument; a mere difference of judicial view or erroneous conclusion of law is not a ground for review.
Court orders
#- 1.Application dated 6th November, 2020 allowed
- 2.Ruling delivered on 27th October, 2020 reviewed and the respondent found not in contempt of court
- 3.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, Rule 33 (review jurisdiction)
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.
Accordingly, application dated 6th November, 2020 is hereby allowed and the ruling delivered on 27 th October, 2020 hereby reviewed and the respondent found not in contempt of court. Costs shall be in the cause.
The error or omission must be self-evident and should not require an elaborate argument to be established.
whatever the ground there is a requirement that the application has to be made without un reasonable delay
Issues in the judgment
#Date of the contempt ruling is inconsistently given as 27th October 2020 and '20220'
The claimant statute is referred to as 'Labour Relations Court Act' whereas the provision relied on (section 48) is of the Labour Relations Act
The claimant is referred to as 'the claimant union' without its full name being expressly stated in the judgment text; parties named from context
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance and Finance Union v SMEP Microfinance Bank Limited [2020] KEELRC 19 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 6th November, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/19/eng@2020-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.