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ELRCPartially AllowedCBA No. 34 of 2020 (registration application objected to)· [2021] KEELRC 2303 (KLR)

Kenya County Government Workers Union Union v Nairobi Water and Sewerage Company Limited & National Union of Water and Sewerage Employees [2021] KEELRC 2303 (KLR)

Employment and Labour Relations Court
15 January 2021
5,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Employment and Labour Relations Court judgment by Maureen Onyango J dealt with a preliminary objection by the Kenya County Government Workers Union (KCGWU) and an objection by the National Union of Water and Sewerage Employees (NUWASE) to the intended registration of a CBA between KCGWU and Nairobi City Water and Sewerage Company Limited (CBA No. 34 of 2020). KCGWU argued that NUWASE lacked locus standi as it had not sought leave to be enjoined and that no main suit existed. The Court applied the Mukisa Biscuits definition of a preliminary objection, held that an objector to registration of a CBA is entitled to be heard as of right, and dismissed the objection as raising factual rather than legal issues. On the merits, 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, had removed water companies from KCGWU's area of operation and identified NUWASE as the appropriate union for water sector employees. The recognition agreement between KCGWU and Nairobi Water was therefore null and void, and the employer lacked capacity to enter a second recognition agreement while NUWASE's agreement subsisted. The Court held that membership percentages alone do not determine recognition, that Section 54(8) of the Labour Relations Act requires the employer's sector to be considered, and that Articles 36 and 41 guarantee the right to join a relevant, not any, trade union. The 2015 CBA (RCA No. 224 of 2015) was left intact as water under the bridge under Section 59. The Court declined to register the impugned CBA and made no order as to costs.

Key legal issues

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01

Whether NUWASE had locus standi as an objector without seeking leave to be enjoined

Holding

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

Reasoning

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.

p. 4
02

Whether KCGWU could represent Nairobi Water employees and register a CBA with the company

Holding

KCGWU has no right to cover employees in the water services sector; the CBA was negotiated without capacity and registration was declined

Reasoning

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.

p. 7
03

Whether Articles 36 and 41 freedom of association entitle employees to join any union of choice

Holding

The right is to join a relevant trade union whose membership clause covers the employee's sector, not any union

Reasoning

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.

p. 7
04

Status of the 2015 CBA (RCA No. 224 of 2015) given the 2018 Court of Appeal decision

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.KCGWU's preliminary objection dated 10th March 2020 dismissed
  2. 2.The Court declined to register the CBA between Kenya County Government Workers Union and Nairobi City Water and Sewerage Company Limited
  3. 3.No orders as to costs

Authorities

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Legislation

  • Labour Relations ActSections 4, 48(1) and (2), 54(1), 54(8), 59(3) and (5)
  • Constitution of KenyaArticles 36, 41(2)(c), 159(2)(d), 48
  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Water Act2002
  • Universal Declaration of Human Rights

Cases cited (16)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors
    (1969) EA 696
  • National Union of Water and Sewerage Employees & 3 Others v Nairobi Water and Sewerage Company Limited & 3 Others
    Civil Appeal No. 18 of 2013
  • Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Amicus Curiae)
    [2017] eKLR, Petition No. 1 of 2017
  • Francis Karioki Muruatetu & Another v Republic & 5 others
    Petition 15 as consolidated with 16 of 2013 [2016] eKLR
  • Yusuf Abdi Adan & another v Hussein Ahmed Farah & 3 others
    [2016] eKLR, Civil Case No. 100 of 2016
  • Wilmot Mwadilo & 3 Others v Eliud Timothy Mwamunga and One Other
    HCC No. 1 of 2017
  • Kenya Breweries Ltd & Another v Washington O. Okeyo
    [2002] EA 109
  • Mrao Ltd. v First American Bank of Kenya & 2 Others
    (2003) KLR
  • Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi & 5 Others
    [2014] eKLR
  • Kenlab Cons Ltd v New Gatitu Service Station Ltd & Another
    [1990] eKLR
  • Paul Gitonga Wanjau v Gathuthis Tea Factory Company Ltd & 2 others
    [2016] eKLR
  • Satya Bhama Gandhi v DPP & 3 others
    [2018] eKLR, JR Division Misc. Civil Application No. 685 of 2017
  • BIFU v Maisha Bora Sacco Society Limited
    Cause No. 2298 of 2014
  • Nakuru Water and Sanitation Services Co. Ltd v Mike Oluoch & 11 others
    [2009] eKLR
  • Scientific Research International Technical & Allied Workers Union v Kenya Agricultural Research Institute & Another
    [2013] eKLR
  • Kenya Plantation and Agricultural Workers Union v Kenya Export Floriculture, Horticulture and Allied Workers Union (Kefhau) represented by Its Promoters David Benedict Omulama & 9 others
    [2018] eKLR
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

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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, "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.