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ELRCOtherCause No. 755 of 2013 (with Causes 2133 of 2011; 823A of 2012 consolidated with 2504 of 2012; 2020 of 2012; 2062 of 2012; 1526 of 2013; 1007 of 2017 consolidated with 977 of 2017 and 2107 of 2016)· [2019] KEELRC 172 (KLR)

National Union of Water and Sewerage Employees v Nairobi City Water and Sewerage Company Ltd & 4 others (Cause 755 of 2013 & 2133 of 2011 & 823A, 2504, 2020, 2062 & 1526 of 2012 & 1007 & 977 of 2017 & 2107 of 2016 (Consolidated)) [2019] KEELRC 172 (KLR)

Employment and Labour Relations Court
22 November 2019
2,713 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This judgment deals with a proliferation of causes filed in the Employment and Labour Relations Court arising from protracted leadership wrangles within the National Union of Water and Sewerage Employees (NUWASE) and historical demarcation disputes with the Kenya County Government Workers Union (formerly KLGWU). The court called for all files and obtained a comprehensive report from the Registrar of Trade Unions detailing the union's litigious history from Cause 513(N) of 2009 onwards, including the striking out of proceedings in 2012, a consent reinstating Mr. Awach's team, and the 2016 elections in which the Awach team was elected and registered. KCGWU submitted that the Claimants, not being registered officials, lacked locus standi and that the multiple suits were an abuse of process; the Registrar likewise characterised the claims as forum shopping. The court framed two issues: the identity of NUWASE's legitimate officials and whether the suits by former officials should be struck out as vexatious and abusive. It held that the demarcation disputes had been conclusively resolved by Industrial Court rulings in C.A. No. 213 of 2010 and Cause No. 439 of 2010, upheld in Civil Appeal No. 18 of 2013, rendering all demarcation suits redundant. On leadership, it held that the 2016 national elections, called under Section 34 of the Labour Relations Act, vacated all pre-2016 elective positions, so only suits challenging the 2016 elections are valid. The court closed all demarcation files, directed that only Cause No. 1007 of 2017 (consolidated with Causes 2107 of 2016 and 977 of 2017) proceed to hearing on a priority basis, ordered archived removal of closed files, and directed each party to bear its own costs.

Key legal issues

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01

Legitimate officials of NUWASE

Holding

Only officials elected in the 2016 elections hold valid positions; all pre-2016 elective positions were declared vacant by the calling of the 2016 national elections

Reasoning

The Registrar of Trade Unions, under Section 34 of the Labour Relations Act, calls union elections every five years. The last elections were held in 2016, in which the team led by Elijah Otieno Awach was elected and registered. Cases filed before those elections by former officials were therefore redundant; only disputes challenging the 2016 elections remain live.

p. 5
02

Demarcation between NUWASE and KCGWU (formerly KLGWU)

Holding

Demarcation disputes between the two unions have been conclusively resolved; all suits on the subject are redundant and should be closed

Reasoning

The Industrial Court in C.A. No. 213 of 2010 directed KLGWU to delete reference to councils' water companies from its CBA, and in Cause No. 439 of 2010 held NUWASE to be the appropriate union for water company employees, restraining KLGWU from representing them. These decisions were upheld by the Court of Appeal in Civil Appeal No. 18 of 2013, putting the issue to rest.

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Multiplicity of suits / abuse of court process

Holding

The multiple causes filed by persons purporting to be union officials amounted to forum shopping and an abuse of process, justifying closure of redundant files

Reasoning

The Registrar's report showed the Claimants filed numerous causes presenting themselves as NUWASE officials seeking similar prayers, described as forum shopping on issues already determined. KCGWU similarly averred the multitude of suits wasted judicial time and that the Claimants lacked locus standi as they were not registered officials.

p. 4

Legal principles established

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  • Union officials elected prior to the 2016 national elections ceased to hold office upon the calling of those elections; only disputes challenging the 2016 elections are valid
  • The Industrial Court determined that NUWASE is the appropriate union for employees of water companies, a position upheld on appeal

Court orders

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  1. 1.All files relating to demarcation between NUWASE and KCGWU are closed, including Cause 2133 of 2011, Cause 823A of 2012 and 823 of 2012, Cause 2020 of 2012, Cause 2062 of 2012 and Cause 1526 of 2013
  2. 2.Cause No. 1007 of 2017 as consolidated with Cause No. 2107 of 2016 and 977 of 2017 to proceed to hearing and final determination
  3. 3.The Deputy Registrar to physically remove the closed files from the registry to the archives to avoid further multiplicity of suits
  4. 4.Each party shall bear their costs
  5. 5.Cause No. 1007 of 2017 as consolidated be set down for hearing on priority basis

Authorities

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Legislation

  • Water Act2002
  • Labour Relations ActSection 34

Cases cited (5)

  • Narayana Reddy vs. State of Kamataka
    Air (1985) KAN 99, 106
  • Rift Valley Railways Workers Union (K) vs. Kenya Railways Staff Retirement Benefits Scheme & Another
    [2017] eKLR
  • KUDHEIHA Workers vs. Bom Mbwinjeru Primary School
    [2018] eKLR
  • C.A. No. 213 of 2010 (Industrial Court ruling)
  • Civil Appeal No 18 of 2013
Jurisdiction invoked
Inherent case-management powers of the Employment and Labour Relations Court over causes filed before it, including Section 34 of the Labour Relations Act as regards union elections

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 v Nairobi City Water and Sewerage Company Ltd & 4 others (Cause 755 of 2013 & 2133 of 2011 & 823A, 2504, 2020, 2062 & 1526 of 2012 & 1007 & 977 of 2017 & 2107 of 2016 (Consolidated)) [2019] KEELRC 172 (KLR)", Case Analysis (2019). Cause No. 755 of 2013 (with Causes 2133 of 2011; 823A of 2012 consolidated with 2504 of 2012; 2020 of 2012; 2062 of 2012; 1526 of 2013; 1007 of 2017 consolidated with 977 of 2017 and 2107 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/172/eng@2019-11-22

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