Kenya County Government Workers Union Union v Nairobi Water and Sewerage Company Limited & National Union of Water and Sewerage Employees [2021] KEELRC 2303 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court refused to register a water sector CBA negotiated by a union from the wrong sector.
What this practically means
#Executive summary
#Key legal issues
#Whether NUWASE had locus standi as an objector without seeking leave to be enjoined
The preliminary objection failed because an objector to registration of a CBA is entitled to be heard as of right and need not be enjoined
Applying the Mukisa Biscuits definition, the Court held preliminary objections lie only on points of law. NUWASE's application raised matters of fact requiring hearing. As there was no suit in which enjoinment could be sought, NUWASE came as an objector whose objection the Court was bound to hear and determine.
Whether KCGWU could represent Nairobi Water employees and register a CBA with the company
KCGWU has no right to cover employees in the water services sector; the CBA was negotiated without capacity and registration was declined
The Court found that prior unchallenged decisions in Cause 439 of 2010 and CA No. 213 of 2010, confirmed by the Court of Appeal in Civil Appeal No. 18 of 2013, removed water companies from KCGWU's coverage. The recognition agreement of 18th February 2013 violated those decisions and was null and void, tainting the subsequent CBA.
Whether Articles 36 and 41 freedom of association entitle employees to join any union of choice
The right is to join a relevant trade union whose membership clause covers the employee's sector, not any union
The Court held that Article 41(2)(c) grants a right to join 'a trade union', meaning a relevant one. Every union must have a membership clause defining eligibility. An employee in the water sector cannot join a union covering a different sector merely by invoking freedom of association.
Status of the 2015 CBA (RCA No. 224 of 2015) given the 2018 Court of Appeal decision
The 2015 CBA, though tainted, had been registered and implemented before the Court of Appeal's decision and takes effect on registration under Section 59 of the Labour Relations Act
Sections 59(3) and 59(5) provide that collective agreements take effect on registration and are incorporated into employees' contracts. Since the Court of Appeal decision postdated registration and implementation, the 2015 CBA could not be undone and is treated as concluded.
Legal principles established
#- An objector to registration of a CBA does not require leave to be enjoined but is entitled to be heard as of right
- Membership figures alone do not determine trade union recognition; the sector in which the employer operates is a relevant consideration under Section 54(8) of the Labour Relations Act
- An employer lacks capacity to enter into a second recognition agreement while a subsisting recognition agreement with another union is in force
Court orders
#- 1.KCGWU's preliminary objection dated 10th March 2020 dismissed
- 2.The Court declined to register the CBA between Kenya County Government Workers Union and Nairobi City Water and Sewerage Company Limited
- 3.No orders as to costs
- Jurisdiction invoked
- ELRC supervisory and registration jurisdiction over collective bargaining agreements under the Labour Relations Act, including Section 59 and supervision of its own orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union Union v Nairobi Water and Sewerage Company Limited & National Union of Water and Sewerage Employees [2021] KEELRC 2303 (KLR)", Case Analysis (2021). CBA No. 34 of 2020 (registration application objected to). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2303/eng@2021-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.