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Court of AppealAllowedCivil Appeal No. 18 of 2013· [2018] KECA 846 (KLR)

National Union of Water and Sewerage Employees & 3 others v Nairobi Water and Sewerage Company Limited & 3 others

Court of Appeal
16 February 2018
RNR.N. NambuyePKP.O. KiageAMA.K. Murgor
5,351 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that employment courts cannot revive or overturn old cases on their own initiative—only an aggrieved party can ask for that.

What this practically means

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Executive summary

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The appellants, a trade union and its officials, appealed against a ruling of Nzioki wa Makau, J. of the Industrial Court in Industrial Cause No. 823 of 2012. The learned Judge had consolidated numerous suits concerning which trade union lawfully represented Nairobi Water and Sewerage Company's unionisable employees, stayed the consolidated causes, then suo motu called for files in Industrial Causes 439 of 2010, 213 of 2010 and 118 of 2010, vacated final orders made by Justices Kosgei and Rika, declared a registered Collective Bargaining Agreement (RCA No. 88 of 2010) spent, expunged an exhibit, and pronounced the KLGWU the appropriate union. The Court of Appeal, hearing the appeal with only counsel for the 2nd and 4th appellants present, framed three issues: whether the judge exercised his discretion judiciously in consolidating and staying the suits; whether he had jurisdiction to suo motu review and set aside the predecessor court's final orders; and whether he could suo motu declare the CBA spent. The Court held that the consolidation was made without interrogating pleadings for commonality and without reasons, and that the ELRC's jurisdiction under Article 162(2) and sections 12 and 16 of the ELRC Act could only be invoked by an aggrieved party - no provision authorised suo motu recall, review or setting aside of the predecessor's decisions. The judge also lacked mandate to interfere with a duly registered CBA, that function belonging to the Labour Relations Board. The appeal was allowed, the impugned ruling and all consequential orders were set aside, and the appellants received the costs of the appeal.

Key legal issues

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01

Suo motu review and setting aside of a predecessor court's final orders

Holding

The ELRC had no jurisdiction to suo motu call for files, review and vacate final orders of the defunct Industrial Court; review under section 16 and Rule 32 requires an application by an aggrieved party.

Reasoning

Sections 12 and 16 of the ELRC Act and Rules 8 and 32 confine appellate and review jurisdiction to matters brought by aggrieved parties. Section 22 of the Sixth Schedule and section 33 of the Industrial Court Act continued pending proceedings but donated no power to the successor court to revisit its predecessor's decisions suo motu. The ex debito justitiae doctrine was misapplied.

p. 10
02

Consolidation without commonality or procedural steps

Holding

The consolidation order was an error of discretion: issues were not crystallized, matters were not introduced by application, and the judge failed to demonstrate commonality of law or fact or give reasons.

Reasoning

Rule 23 of the Industrial Court (Procedure) Rules 2010 permits consolidation where common questions of fact or law arise or simultaneous proceedings are practical. The judge did not interrogate the pleadings in each file, some files lacked complete pleadings, and the consolidated matters included High Court civil and judicial review matters outside the ELRC's mandate under Article 162(2)(a).

p. 8
03

Declaration that a registered CBA was spent and expunging of exhibits

Holding

The judge had no mandate under the Labour Relations Act to revisit a concluded and duly registered collective bargaining agreement suo motu; revocation of recognition or CBAs is for the Labour Relations Board.

Reasoning

Sections 54, 57, 58 and 59 of the Labour Relations Act deal with recognition of trade unions and CBAs but contain nothing mandating the ELRC or its predecessor to interfere with a registered CBA suo motu. The validity of the recognition agreement was also never an issue for determination and no submissions were made on it.

p. 10
04

Scope of ELRC jurisdiction over civil and judicial review matters

Holding

The ELRC's mandate under Article 162(2)(a) does not extend to civil suits and judicial review matters reserved for the High Court under Article 165.

Reasoning

The consolidated matters included HCCC No. 784 of 2004 and two judicial review applications, which fall within the High Court's jurisdiction under Article 165(3). The court relied on Republic v Karisa Chengo & 2 others for the delineation of the jurisdiction of courts of equal status.

p. 8

Legal principles established

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  • The ELRC's appellate and review jurisdiction under Article 162(2) and sections 12 and 16 of the ELRC Act can only be invoked by an aggrieved party; the court cannot suo motu recall, review or set aside orders of its predecessor.
  • A court without jurisdiction must down its tools at the point jurisdiction is found to be lacking.
  • Before ordering consolidation a court must interrogate the pleadings in each suit, identify commonality of law or fact, and give reasons for consolidation.
  • An appellate court does not interfere with a trial court's exercise of discretion unless the judge misdirected himself or was clearly wrong, resulting in a wrong decision or misjustice.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The impugned Ruling/Order dated the 13th day of December, 2013 is set aside together with all other consequential orders
  3. 3.The appellants shall have costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 165(3)(a),(b),(d)
  • Constitution of Kenya, 2010Article 259
  • Constitution of Kenya, 2010Articles 36(1), 36(4) and 41
  • Constitution of Kenya, 2010Section 22, Sixth Schedule
  • Employment and Labour Relations Court Act, No. 20 of 2011Sections 12 and 16
  • Industrial Court Act (repealed)Section 33
  • Labour Relations Act (repealed)Sections 54, 57, 58 and 59
  • Trade Disputes Act, Cap 234 (repealed)Section 17(1)
  • Evidence Act, Cap 80Section 44
  • Industrial Court (Procedure) Rules 2010Rule 23
  • Industrial Court Rules 2010Rules 8, 27(4) and 32

Cases cited (6)

  • Stumberg and another versus Potgieter
    [1970] EA 323

    Principles for consolidation where common questions of law or fact exist

  • PIL Kenya Ltd Vs. Oppong
    [2009] KLR 442

    Duty of a first appellate court to evaluate evidence afresh and reach its own decision

  • Mbogo and another vs. Shah
    [1968] EA 93

    Circumstances in which an appellate court may interfere with a trial court's discretion

  • Owners of the Motor Vessel 'Lillians' versus Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Jurisdiction is everything; a court must down tools where it lacks jurisdiction

  • Republic versus Karisa Chengo & 2 others
    SC.5/2015

    Delineation of jurisdiction between courts of equal status under Article 162(2) and Article 165

  • Law Society of Kenya Nairobi Branch Vs. Malindi Law Society & 6 Others
    [2017] eKLR

    Affirmation of appellate jurisdiction over subordinate courts in related matters

On appeal from
Industrial Court of Kenya (Employment and Labour Relations Court) at Nairobi
Industrial Cause No. 823 of 2012
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction; the impugned ruling was of a court with the status of the High Court established under Article 162(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "National Union of Water and Sewerage Employees & 3 others v Nairobi Water and Sewerage Company Limited & 3 others", Case Analysis (2018). Civil Appeal No. 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/846/eng@2018-02-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.