The Banking Insurance and Finance Union has won a battle of more than a decade after Kenya Revenue Authority (KRA) was ordered to start implementing a check-off system and remit deductions to the union.
In a judgement, three judges of the appellate court overturned a 2008 decision by High Court Judge George Dulu.
They said the finding of the judge that KRA was not a financial institution, which fell within the remit of the union’s mandate, was not set out anywhere in KRA’s affidavit.
The judges added that the taxman did not advance it as a reason for refusal to comply with a directive of the Registrar of Trade Unions on July 22, 2004 urging them to start remitting the deductions.
“The provision required the learned judge to be satisfied with the employer’s reasons, but it was not for the court, out of creativity and craft, to establish a reason upon which to decline to grant the order sought, even though the reason relied upon may well be correct,” the judges said.
Justices Philip Waki, Mohamed Warsame and Agnes Murgor added that there was nothing that was presented to the court, and there was no material upon which the court could rely to satisfy itself that KRA ought not to comply with the registrar’s notice, asking them to start the check-off system.
“We are satisfied that the learned judge took into account matters that he ought not to have considered, and in so doing arrived at the wrong conclusion,” they added.
The union through lawyer Judith Guserwa moved to court in 2004 after KRA refused to implement the check-off system.
Ms Guserwa said pursuant to its mandate, it had recruited over 900 employees of the KRA and had been provided with approval by the Minister for Labour and Human Resource Development to receive deductions from their members.
But she said KRA failed to honour the directions of the registrar of which it is bound to comply. She added that KRA could not continue to deny the union its right to its members’ union dues.
In opposition, KRA through lawyer J. K. Mwangi said it was opposed to implementing the check-off system because of an existing rivalry between BIFU and the Kenya Union of Commercial Food And Allied Workers (KUCFAW), which had also been pursuing the recruitment of its employees to their union.
Ms Guserwa faulted judge Dulu saying he misdirected himself in arriving at a decision that was not before the court. The issue was whether the respondent had members in its union, and if so, whether the respondent should implement the check-off system.