Banking, Insurance & Finance Union (Kenya) v Patnas Sacco Society Limited [2020] KEELRC 1390 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the respondent was in contempt of the consent order of 30th January, 2019
No contempt found; the consent order set no timelines and both parties stalled the negotiations
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.
Effect of the claimant serving the respondent directly rather than through its advocates
Direct service on the respondent in CBA negotiations is proper under section 57 of the Labour Relations Act, 2007
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.
Whether members' alleged withdrawal from the union defeats the consent order
No; such matters are outside the consent order and cannot defeat orders in force
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.
Legal principles established
#- 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
#- 1.Finding that there is no contempt by the respondent
- 2.The court to allocate timelines within which both parties shall sit, negotiate and report back on the CBA
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.