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ELRCDismissedELRC Cause (amended claim dated 14th November 2022; related to Nairobi ELRC Cause No. 2191 of 2016)

Banking Insurance and Finance Union v Paramount Universal Bank Kenya Ltd (Cause E108 of 2022) [2023] KEELRC 3191 (KLR)

Employment and Labour Relations Court
5 December 2023
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a union's bid to force a bank to hand over employee lists, ruling only a review or appeal—not a fresh case—can fix the earlier ruling.

What this practically means

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Executive summary

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The Claimant, a registered trade union with a recognition agreement with the Kenya Bankers Association covering the Respondent bank, claimed it was entitled under section 49(2)(b) of the Labour Relations Act to be supplied with a list of unionisable employees (and companies from which such employees were outsourced) to enable it to seek an agency fee order from the Minister. It sought a declaration to that effect plus costs. The Respondent opposed, contending the suit was res judicata, having been directly and substantially in issue in Nairobi ELRC Cause No. 2191 of 2016, in which Makau J on 8th April 2021 declared the union entitled to agency fees but held that it was not for the Respondent to provide the list, the union having failed to plead and prove the list and a Minister's order. The court, sitting as a single judge, identified the sole issue as whether the Respondent should be ordered to furnish the list. While the court considered Makau J may have acted per incuriam - since section 49(2)(b) requires the list to be prepared by the employer - it held that a co-ordinate court cannot correct another judge's discretionary error; the only remedies are review or appeal to the Court of Appeal. The application not being a review, the court found itself 'hand tied' and dismissed the claim with no order as to costs on 5th December 2023.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court should order the Respondent to furnish the Claimant with a list of unionisable employees in its employ who are not members of the Claimant union for purposes of agency fees
  2. 2.Whether the claim is res judicata having regard to the judgment in ELRC No. 2191 of 2016

Key legal issues

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01

Obligation to supply the list of unionisable employees for agency fee purposes

Holding

Section 49(2)(b) of the Labour Relations Act places the obligation to prepare and supply the list of employees on the employer, and the learned Judge in the prior suit appears to have acted per incuriam in holding otherwise

Reasoning

The court examined section 49 of the Labour Relations Act, which requires that a request to the Minister for an agency fee order be accompanied by a list of all employees prepared by the employer. On that reading, Makau J's contrary view in the earlier judgment was per incuriam. However, the court held that this error could only be corrected by review or appeal, not by a co-ordinate court in a fresh suit.

p. 4
02

Competence of the fresh claim to revisit the earlier judgment

Holding

The issues raised were decided by Makau J and can only be revisited on review or appeal to the Court of Appeal

Reasoning

The claimant's application sought an order directing the respondent to furnish lists of unionisable and outsourced employees. The court found the same issues were before Makau J in ELRC No. 2191 of 2016. Since the present application was not framed as a review, the court could not revisit the earlier discretionary ruling and the application had to be dismissed.

p. 4

Legal principles established

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  • Under section 49(2)(b) of the Labour Relations Act, the request to the Minister for an agency fee order must be accompanied by a list of all employees prepared by the employer in respect of whom the deduction is to be made
  • A court of co-ordinate jurisdiction cannot correct a discretionary error of another judge of equal rank; the remedy is review or appeal

Court orders

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  1. 1.The application/claim is dismissed with no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over the claim; the court declined to disturb a prior co-ordinate court decision

Relief refused

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Declaration that the Claimant is entitled to be supplied with a list of unionisable employees (and order compelling the Respondent to furnish the list and list of outsourced companies)

A co-ordinate court (Makau J) had already held that it was not for the Respondent to provide the list; that discretionary decision could only be corrected on review or appeal to the Court of Appeal, not by this court of co-ordinate jurisdiction

p. 4

Costs of the claim

Dismissal with no order as to costs

p. 4

Costs

No order as to costs - each party to bear its own costs implicitly; judgment states 'with no order as to costs'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Court being a court of co-ordinate jurisdiction cannot correct a discretionary error by the learned judge unless made by way of a review application.
p. 4Limits of co-ordinate jurisdiction
This issue was before Honourable Justice Makau and can only be revisited either by way of an application for review or an appeal to the Court of Appeal.
p. 4Remedy for correcting the prior judgment
To this extent this Court finds it hand tied and have not choice but to dismiss the application with no order as to costs.
p. 4Final orders / disposition
(b) supply a list of all employees prepared by the employer in respect of whom a deduction shall be made;
p. 4Statutory duty under section 49(2)(b) Labour Relations Act

Issues in the judgment

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minor

Judgment paragraph numbering jumps from paragraph 12 to paragraph 14; no paragraph 13 appears

minor

The name of the Respondent bank is not stated anywhere in the judgment text; it is referred to only as 'the Respondent'

minor

Costs of the claim were sought by the Claimant and by the Respondent in its reply, yet the court dismissed with no order as to costs

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 and Finance Union v Paramount Universal Bank Kenya Ltd (Cause E108 of 2022) [2023] KEELRC 3191 (KLR)", Case Analysis (2023). ELRC Cause (amended claim dated 14th November 2022; related to Nairobi ELRC Cause No. 2191 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3191/eng@2023-12-05

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