The Kenya Union of Water and Sewage Employees has suffered a blow after the court dismissed an application seeking orders to have its Cooperative Bank account at Buru Buru, Nairobi, unfrozen.
The bank flagged and froze the account following disputes of leadership within the union in a decision guided by its Terms and Conditions.
It also changed the account's signatories.
In the application filed through the union's General Secretary Elijah Otieno Awach regretted that the bank had acted without informing the union.
He argued that the applicant’s right to a fair hearing and rules of natural justice were violated.
Awach further argued that the bank did not have the authority to freeze the account without a resolution by Kuwase National Executive Committee, presented to it by the general secretary.
He also claimed that the bank erred in making the changes without adhering to Kuwase constitution and rules, as the account is a cooperate account governed by the rules.
Prior to the flagging, the bank received a letter from the union's acting secretary general George Olwalo requesting a change in signatories to the account.
Olwalo cited resolutions of the National Executive Council meeting on March 11, 2023.
The bank told the Employment and Labour Relations Court that it declined the request and asked to be provided with a letter from the Registrar of the Trade Unions approving the same.
On March 15, the bank received a letter from the union's treasurer Walter Muga disputing the purported NEC meeting and its resolutions.
Olwalo did not however relent as he wrote again on March 31, arguing that consent of the Registrar was not required as long as due procedure had been followed in appointing the signatories.
On April 3, one Bashir Ahmed Mohamed requested for a change of his signature specimen, a request which was acted on.
This was on the grounds that the bank has no duty to decline a request to amend the signature specimen of a bank customer, whether the account held is an individual account or a group account.
The contradictions on the NEC meeting resulted to confusion as to who was the secretary general of the union between Olwalo and Awach, prompting the bank to act.
Relying on clause 1.22 of the Cooperative Banking Account General Terms and Conditions, the bank resolved that it had a duty to secure the disputed account from unauthorized access.
It made the decision to temporarily flag the account against any withdrawals pending the resolution of the dispute regarding the authentic signatories.
The decision freezing the account was communicated to Kuwase through a letter dated April 26, 2023.
Upon reception of the letter, Awach wrote claiming that he was not aware of the change in signature specimen.
He also requested the copies of the letter from Bashir giving instructions to the bank regarding his change of signature.
The bank told the court that it replied on May 3, and confirmed having received a letter from Bashir, but declined to avail to the union the change of signature request form, since it was a confidential bank document.
Cooperative Bank maintained that the decision to freeze the account was not taken unreasonably rather wisely to protect the account from unauthorised access.
On his part, Bashir argued that Awach was suspended from holding the secretary general post and replaced with Olwalo in acting capacity.
This was done following a criminal case where Awach was charged with forging signatures union officials and wanton withdrawals of money.
A charge sheet presented to the magistrate's court in March, stated that Awach on February 12, 2021, in Nairobi with intent to defraud, forged a signature on NEC minutes purporting it to have been signed by Bashir.
Bashir also claimed that Awach had been irregularly directing union members to divert monies into separate accounts.
He maintained that the union does not at the moment have any salary obligations to any of its members, nor does it have any rental arrears.
He went on and urged the court to not allow any of the orders sought by Awach claiming that he was not acting in the best interests of the union.
He prayed that the court enforce the order of March 3, barring Awach from taking part in the affairs of the union and to allow Olwalo to be made a signatory of the unions account, so as to settle all the financial obligations of the union.
The court took the submissions into consideration and found that the bank had acted as per prevailing regulatory provisions and could not be faulted for freezing the account.
Principal Judge Byram Ongaya declined to offer the three judicial review orders of mandamus, certiorari, and prohibition prayed by KUWASE, noting that it had not shown that the dispute about the authorised signatories and leading to the freezing or flagging of the account had not been resolved.
Ongaya also established that Awach had guised as KUWASE to move the application.
"The Court considers that Elijah Otieno Awach camouflaged as the named trade union whereas he was moving as an individual to file the application. The Court considers that he should personally meet the costs of the proceedings and not the named trade union applicant,"the judge ruled on August 4.