Banking Insurance and Finance Union v SMEP Microfinance Bank Limited (Cause 890 of 2019) [2024] KEELRC 2370 (KLR)
The bottom line
#A Kenyan court refused to recognise a trade union on stale numbers, ordering a Labour officer head count because employer-handled resignations that bypassed the union were irregular.
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 Claimant had attained the simple majority of unionisable employees as per section 54 of the Labour Relations Act to be recognised by the Respondent
Key legal issues
#Whether the Claimant union had attained a simple majority of unionisable employees under section 54 of the Labour Relations Act so as to be entitled to recognition
The court could not finally determine simple majority because the parties disputed the number of unionisable members (122 vs 78) and time had passed; a fresh head count by a Labour officer was ordered
The Respondent claimed 78 active members out of 170 unionisable employees, asserting the rest were managers, had withdrawn or exited employment. The Claimant maintained 122 out of 175 members, with withdrawals never served on the union as required by section 48(8). Noting the lapse of almost five years and changed circumstances, the court directed a head count to establish current unionisable numbers before making final orders on recognition and dues.
Validity of the purported member resignations and withdrawals
The withdrawals were irregular because the Respondent never served resignation notices on the union as required by section 48(8), and they appeared triggered by the Respondent's own letter to employees
The court noted the union was unaware of the resignations at filing and only saw them in the response filed in 2022. It observed the sudden withdrawals followed the Respondent's letter of 27th November 2019 asking employees to confirm deductions, and relied on the Transfleet decision condemning failure to forward resignation notices to the union.
Legal principles established
#- An employer shall recognise a trade union for collective bargaining if it represents a simple majority of unionisable employees
- An employer must forward a copy of any notice of union resignation he receives to the trade union, failing which purported withdrawals cannot defeat recognition
- Non-compliance with sections 48(6) and (8) of the Labour Relations Act renders employer-mediated withdrawals irregular
- Where membership numbers have become uncertain over time, the court may direct a Labour officer's head count before determining simple majority for recognition
Court orders
#- 1.That the Labour officer to conduct a head count of unionisable employees currently in the respondent's employment and submit a report to the Court within 60 days of this order to enable the court make final orders in respect of the dispute
- 2.That the matter be mentioned on 25th November, 2024 for further directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over trade union recognition and union dues disputes under the Labour Relations Act, No. 14 of 2007
Relief refused
#Declaration that the union is entitled to union dues from 122 members
Court found it unfair to order remission of dues for employees who may have left employment without an updated head count
Declaration of simple majority and recognition under section 54(1) of the Labour Relations Act
Disputed membership numbers required a fresh head count by a Labour officer before the court can determine simple majority
Order directing the Respondent to enter into a recognition agreement within 30 days
Final orders deferred pending the Labour officer's report; parties instead encouraged to cooperate and ultimately sign a recognition agreement
Costs of the claim
No costs order was made in the final directions
Costs
No costs order made; matter reserved for further directions
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.
An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.
An employer shall forward a copy of any notice of resignation he receives to the trade union.
In conclusion I order that the Labour oficer to conduct a head count of unionisable employees currently in the respondent's employment and submit a report to the Court within 60 days of this order to enable the court make final orders in respect of the dispute.
The matter to be mentioned on 25th November, 2024 for further directions.
If my advise would be sought, I would encourage the parties for the sake of industrial relations to cooperate in the recruitment by the claimant of unionisable employees and ultimately sign a recognition agreement
Issues in the judgment
#Paragraph 51 contains a drafting error, stating the court considered 'the issues for determination' where the sentence appears to intend 'noted the issues for determination'
The parties dispute the number of unionisable employees - Respondent pleads 170 while the Claimant pleads 175 - and the court does not resolve the discrepancy
Inconsistency in the number of agreed exclusions: the pleading records 38 employees agreed to be excluded as managers, while the Claimant's submissions refer to 37
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Banking Insurance and Finance Union v SMEP Microfinance Bank Limited (Cause 890 of 2019) [2024] KEELRC 2370 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2370/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.