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ELRCDismissedNot stated in judgment· [2019] KEELRC 1938 (KLR)

Board of Trustees, National Water Conservation and Pipeline Corporation (NWCPC) Superannuation Scheme v Eldama Ravine Water & Sewerage Company Limited;Kenya Commercial Bank Limited (Ganishee) [2019] KEELRC 1938 (KLR)

Employment and Labour Relations Court
28 February 2019
1,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that water companies, though public utilities, are ordinary limited liability companies whose bank accounts can be attached to pay judgment debts.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru, delivered by M. Mbaru J on 28th February 2019, determines a Notice of Objections filed by the respondent, Eldama Ravine Water & Sewerage Company Limited, against the claimant's application dated 22nd November 2018 seeking a garnishee order absolute. The underlying judgment of 20th July 2017 ordered the respondent to pay the claimant approximately ksh.7,479,072.83 with compounded monthly interest of 3% and costs, the respondent having entered appearance but failed to defend the suit. The respondent objected that the application was incompetent and offended section 21(4) of the Government Proceedings Act, contending that as a water company it is an agent and subsidiary of the Water Services Board under section 47 of the Water Act, under the Baringo County Government, whose property cannot be attached. The garnishee bank maintained neutrality, save for costs of attending. The court framed a single issue: whether the respondent is a government agency or subsidiary protected under section 21(4). Holding that the respondent is a limited liability company registered under the Water Act, 2002, with a separate and distinct corporate status, the court found it not a government agency and distinguished the authorities cited, including Stephen Wanyee Roki v K-Rep Bank and Nahashon Omwoha Osiako. The objections were found without merit; the funds held by the garnishee in accounts 1111359409 and 1105641945 were ordered released to the claimant, with the respondent to bear the claimant's and garnishee's costs.

Key legal issues

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01

Status of the respondent under section 21(4) of the Government Proceedings Act

Holding

The respondent is not a government agency or subsidiary; its registration as a limited liability company gives it a separate corporate status, so its property can be attached in execution of a decree.

Reasoning

The Memorandum of Claim described the respondent as a limited liability company established under the Water Act, 2002, facts unchallenged as the respondent did not defend the suit. That registration establishes an independent legal entity distinct from a government agency, even where the service provided is public in nature. Cases cited by the respondent were distinguished as fundamentally different on their facts.

p. 2
02

Effect of the authority in National Union of Water & Sewerage Employees v Mathira Water and Sanitation Company Limited

Holding

The authority was acknowledged but did not save the respondent; it confirmed water companies are private companies rendering public services with capacity to sue and be sued.

Reasoning

The court read the Mathira case as holding that water companies registered under the Water Act are limited liability companies, agents of the local government, yet private companies rendering public services that retain capacity to sue and be sued, as with Eldoret Water and Nairobi City Water companies. That capacity defeats the section 21 protection claimed.

p. 2

Legal principles established

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  • A water company registered as a limited liability company under the Water Act is a separate legal entity with capacity to sue and be sued, and is not a government agency protected from attachment under section 21 of the Government Proceedings Act, even where it performs a public function.

Court orders

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  1. 1.The respondent's objections to the claimant's application dated 22nd November 2018 are found without merit and dismissed
  2. 2.The property held by the garnishee for the respondent under current account Numbers 1111359409 and 1105641945 shall be released to the claimant in satisfaction of the judgment debt
  3. 3.The respondent shall meet the costs due to the claimant and those of the Garnishee

Authorities

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Legislation

  • Government Proceedings Actsection 21(4)
  • Water Actsection 47
  • Water Act, 2002section 51(33)

Cases cited (3)

  • National Union of Water & Sewerage Employees versus Mathira Water and Sanitation Company Limited & 2 others
    [2013] eKLR
  • Stephen Wanyee Roki versus K-Rep Bank limited & others
    [2016] eKLR
  • Nahashon Omwoha Osiako and others versus the AG and Others
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over the suit and its execution; judgment delivered 20th July 2017 with a decree to be satisfied

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, "Board of Trustees, National Water Conservation and Pipeline Corporation (NWCPC) Superannuation Scheme v Eldama Ravine Water & Sewerage Company Limited;Kenya Commercial Bank Limited (Ganishee) [2019] KEELRC 1938 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1938/eng@2019-02-28

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