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ELRCDismissedApplication and Notice of Motion dated 19th June, 2019· [2020] KEELRC 1390 (KLR)

Banking, Insurance & Finance Union (Kenya) v Patnas Sacco Society Limited [2020] KEELRC 1390 (KLR)

Employment and Labour Relations Court
2 March 2020
1,350 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to punish an employer for contempt over stalled CBA talks because the consent order set no deadlines and both parties dragged their feet.

What this practically means

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Executive summary

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The claimant union moved the Employment and Labour Relations Court at Kericho by a Notice of Motion dated 19th June, 2019 seeking a finding that the respondent was in contempt of a consent order recorded on 30th January, 2019, under which the claimant's application dated 6th November, 2018 (seeking an order compelling the respondent to serve its counter-proposals for the 2016/2017 CBA within three days) was withdrawn and the parties were ordered to sit, negotiate and come up with a settled CBA, with mention for a report on 25th March, 2019. The claimant, through Joseph Tipape, Deputy Secretary General, alleged the respondent refused to attend meetings and failed to share counter-proposals despite service of the extracted order with a penal notice. The respondent, through CEO Nelson Cheruiyot Rono, replied that the consent order set no timeline, communication was ongoing, the claimant failed to attend a meeting proposed for 22nd February, 2019, the claimant served it directly instead of its advocates, and its members had resolved to withdraw from the union. The court read the consent order as requiring the parties to act in good faith without fixed timelines, found both parties had stalled the negotiations, held that direct service was permissible under section 57 of the Labour Relations Act, 2007, and held that the members' alleged withdrawal could not defeat the subsisting orders. Finding no contempt, the court directed that timelines be allocated for both parties to sit, negotiate and report back on the CBA, with no orders on costs.

Key legal issues

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01

Whether the respondent was in contempt of the consent order of 30th January, 2019

Holding

No contempt found; the consent order set no timelines and both parties stalled the negotiations

Reasoning

The consent order required the parties to sit, negotiate and settle a CBA without setting any timelines. The claimant proposed a meeting for 22nd February, 2019 but failed to attend, which the respondent flagged by letter dated 1st March, 2019, a fact unaddressed in the claimant's submissions. Both parties therefore stalled the negotiations. Without proof of wilful disobedience of known terms, contempt cannot be sustained.

p. 3
02

Effect of the claimant serving the respondent directly rather than through its advocates

Holding

Direct service on the respondent in CBA negotiations is proper under section 57 of the Labour Relations Act, 2007

Reasoning

Employment and labour relations involves shop-floor negotiations between the employer and the trade union under a Recognition Agreement. Since the statutory duty to conclude a collective agreement runs between the recognised employer and the trade union, direct service of negotiation correspondence on the respondent is within section 57 of the Labour Relations Act, 2007.

p. 2
03

Whether members' alleged withdrawal from the union defeats the consent order

Holding

No; such matters are outside the consent order and cannot defeat orders in force

Reasoning

The respondent alleged that claimant members resolved in November 2017 to withdraw from the union. The court held these matters were not brought to the court's attention when the consent order was recorded and cannot apply to defeat the essence of the orders in force; withdrawal from membership follows the procedure under the Labour Relations Act, 2007 and is not the issue in dispute.

p. 2

Legal principles established

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  • For civil contempt to be established there must be proof that the terms of the order were within the knowledge of the respondent who has failed to comply (as applied from North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi)
  • Where a consent order sets no timelines for compliance, the parties are left to organise compliance themselves; absence of timelines and mutual stalling defeats a finding of contempt
  • Direct service of negotiation correspondence on the employer is permissible in CBA negotiations under section 57 of the Labour Relations Act, 2007, since shop-floor relations run between employer and trade union

Court orders

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  1. 1.Finding that there is no contempt by the respondent
  2. 2.The court to allocate timelines within which both parties shall sit, negotiate and report back on the CBA
  3. 3.No orders as to costs
Jurisdiction invoked
Original employment and labour relations jurisdiction; enforcement of consent orders of the court (Employment and Labour Relations Court Act / Labour Relations Act, 2007 framework implied, not expressly cited)

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 & Finance Union (Kenya) v Patnas Sacco Society Limited [2020] KEELRC 1390 (KLR)", Case Analysis (2020). Application and Notice of Motion dated 19th June, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1390/eng@2020-03-02

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