Banking Insurance and Finance Union v Consolidated Bank of Kenya Limited (Cause E728 of 2022) [2024] KEELRC 654 (KLR)
The bottom line
#A Kenyan employment court sent a union-versus-bank dispute back to their agreed internal process, confirming you must exhaust that process before suing.
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 claim is prematurely before the Court in that the Claimant did not exhaust the internal dispute resolution mechanisms prior to commencement of the suit
- 2.Whether the Respondent's members were illegally and unlawfully removed from union membership
- 3.Whether management method (promotion of employees) is negotiable or non-negotiable
- 4.Whether the decrease in the Claimant's membership was due to circumstances well anchored in law
- 5.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the claim was prematurely before the Court for failure to exhaust internal dispute resolution mechanisms
Yes. The parties agreed on pre-court dispute resolution under the Recognition Agreement, and the Claimant presented no evidence of invoking those mechanisms or referring the dispute to the Minister for Labour. The Court, though willing and able to determine the issues, directed the parties to exhaust the agreed mechanisms first.
The Court examined clauses 4, 18, 19 and 20 of the Recognition Agreement, which required grievances to go through the Joint Negotiating Council and, if unresolved, referral to the Ministry of Labour. The record showed no attempt by the Claimant to invoke these mechanisms or the statutory conciliation process under the Labour Relations Act. Relying on the exhaustion doctrine and BIFU v KCB, the Court held the parties must respect their agreed pre-court process, which should be concluded within 60 days and a report filed for final orders.
Legal principles established
#- The exhaustion principle is a fundamental principle of administrative law requiring disputes to be subjected to available dispute resolution mechanisms before being placed before a court
- Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
Court orders
#- 1.The parties are directed to subject their dispute to the agreed internal dispute resolution mechanisms before invoking the jurisdiction of the Court
- 2.The dispute to be processed in accordance with Clause 4 read together with clauses 18 to 19 of the Recognition Agreement, to be concluded within 60 days of the Judgment with a report thereon filed in Court for final orders
- 3.Matter set for mention on 3rd June, 2024 for purposes of recording final orders
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court invoked subject to exhaustion of internal dispute resolution mechanisms under the Recognition Agreement and the Labour Relations Act, 2007
Relief refused
#Declaration that the Respondent's removal of employees from union membership by unilaterally stopping remittance of union dues was unlawful and unconstitutional
The Court held the claim premature for failure to exhaust internal dispute resolution mechanisms before invoking the Court's jurisdiction
Order for remittance of all union dues from unionisable employees allegedly removed from union membership
Not determined at this stage; the dispute must first go through the agreed internal mechanisms
Order for deduction and remittance of agency fees under section 49 of the Labour Relations Act, 2007
Not determined; dispute referred back to the internal dispute resolution process
Order that the Respondent adhere to the Recognition Agreement and preamble clause of the CBA on level of union representation
Not determined; dispute referred back to the internal dispute resolution process
Costs
No costs order made in the judgment; costs of the suit were prayed but no order on costs was issued.
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.
The exhaustion principle is a fundamental principle of administrative law whose intention is to subject disputes to available formal or even informal dispute resolution mechanisms before they are placed before a court of law for determination.
The issues raised by the claimant in the present suit are quite sound and valid. The Court is ready willing and able to decide them. However, the parties herein agreed on a pre-court process which ought to be exhausted before the Court can be seized of jurisdiction.
The Court therefore directs that this dispute be processed in accordance with Clause 4 read together with clauses 18 to 19 of the Recognition Agreement between the parties. Such process to concluded within 60 days of this Judgment and a report thereon filed in Court for final orders.
Issues in the judgment
#The parties' names are not stated in the judgment text; the Claimant is described only as 'a registered trade union' and the Respondent only as a member of the Kenya Bankers Association
The cause number of this claim is not stated in the judgment; only a related cause (2330 of 2018) concerning the 2018 terminations is mentioned
Contradictory dates on when the 9 employees were terminated: the Claimant pleads 2017 while the Respondent pleads 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance and Finance Union v Consolidated Bank of Kenya Limited (Cause E728 of 2022) [2024] KEELRC 654 (KLR)", Case Analysis (2024). Not stated in judgment (statement of claim dated 13th October, 2022; Cause 2330 of 2018 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/654/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.