National Union of Water & Sewerage Employees & 3 others v Nairobi City Water & Sewerage Co. Ltd & 3 others [2013] KECA 436 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a union takeover because nearly all workers had already switched unions, leaving nothing left to stop.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable based on the grounds raised regarding consolidation, cancellation of union agreements and validity of the 3rd respondent's agreements, without going into merits.
The court declined to delve into the merits of the appeal, reserving those for the bench hearing the main appeal. It confined itself to the grounds of appeal as filed, which raised contested issues of consolidation of the industrial suits, the alleged cancellation of the 1st applicant's union agreements and the validity of the 3rd respondent's union agreements. On that basis, and conceding counsel for the 1st respondent, it found an arguable appeal.
Whether the appeal would be rendered nugatory absent a stay or injunction
The application failed on the nugatory limb: the stay sought had been overtaken by events because 1,829 of 1,835 unionisable employees were already represented by the 3rd respondent, union dues were being paid to that union, and any loss to the applicant was quantifiable in damages.
The court held there was nothing left to stay since employees had freely elected alternative representation pursuant to Articles 36 and 41 of the Constitution. Remittances of union dues were flowing to the 3rd respondent. Adopting the utilitarian reasoning in East African Cables, the court held that halting the remittances would harm the majority and the wider public dependent on water and sewerage services in Nairobi. Any loss to the applicant was assessable in damages and thus would not render the appeal nugatory.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy two requirements: that the intended appeal is arguable and not frivolous, and that unless the stay, injunction or other relief sought is granted, the intended appeal, if successful, will be rendered nugatory.
- Where events have overtaken the relief sought so that there is nothing capable of being stayed, the nugatory-prong of the Rule 5(2)(b) test fails and the application must be dismissed.
- In labour disputes affecting essential services, the court must weigh the welfare of the majority of employees and the wider public against the interests of a minority union; loss capable of being quantified as damages does not render an appeal nugatory.
Court orders
#- 1.Dismissal of the Notice of Motion dated (filed under Rule 5(2)(b)) seeking stay of execution and injunction pending appeal
- 2.Costs of the application to be costs in the appeal
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Cause No. 823 of 2012
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Questa Care Limited v Public Procurement Administrative Review Board & 2 others [2018] KECA 681 (KLR)[2018] KECA 681 (KLR)21 Mar 2018followed
Cite this brief
#Cite this brief
Caselaw, "National Union of Water & Sewerage Employees & 3 others v Nairobi City Water & Sewerage Co. Ltd & 3 others [2013] KECA 436 (KLR)", Case Analysis (2013). Civil Application No. 85 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/436/eng@2013-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.