National Union of Water and Sewerage Employees & 3 others v Nairobi Water and Sewerage Company Limited & 3 others
The bottom line
#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
#Executive summary
#Key legal issues
#Suo motu review and setting aside of a predecessor court's final orders
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.
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.
Consolidation without commonality or procedural steps
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.
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).
Declaration that a registered CBA was spent and expunging of exhibits
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.
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.
Scope of ELRC jurisdiction over civil and judicial review matters
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.
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.
Legal principles established
#- 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
#- 1.The appeal is allowed
- 2.The impugned Ruling/Order dated the 13th day of December, 2013 is set aside together with all other consequential orders
- 3.The appellants shall have costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.