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ELRCDismissedNot stated in the judgment (Claimant's Notice of Motion dated 15th November 2021)· [2022] KEELRC 849 (KLR)

Kenya County Government Workers Union v Bomet Water & Sanitation Company Limited [2022] KEELRC 849 (KLR)

Employment and Labour Relations Court
10 February 2022
OMOnesmus N Makau
4,158 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court let a union sue for 42 fired water workers but refused to reinstate them or block replacements while the case is decided.

What this practically means

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Executive summary

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The Claimant trade union filed a Notice of Motion dated 15th November 2021 seeking interlocutory relief on behalf of 42 dismissed members against Bomet Water and Sanitation Company Limited, which had terminated their employment by letters dated 18th and 26th October 2021 following an alleged illegal strike on 6th October 2021. The union alleged the dismissals arose from disputes over unpaid salaries, pension and unremitted dues, and that members were denied a fair hearing through unreasonably short notice to respond to show cause letters. The Respondent opposed via a preliminary objection contending prematurity for failure to exhaust internal dispute resolution mechanisms under section 77 of the County Governments Act, sections 85 and 86 of the Public Service Commission Act and section 9 of the Fair Administrative Action Act, and lack of locus standi in the union. The court held it has jurisdiction under Article 162(2)(a) and section 12 of the ELRC Act: a trade union may sue for its members under Article 258 without a recognition agreement, and the grievants, being employees of a private company not recruited by the County Public Service Board, are outside the statutory internal appeal mechanisms, so the preliminary objection fell on its face. On the motion, the court declined all prayers: the anti-victimisation order failed for want of evidence since the members were already out of employment; a stay of termination would amount to interlocutory reinstatement of a crystallised dismissal; and barring replacement hiring would paralyse an essential water service provider to the detriment of the people of Bomet County. The application was dismissed, interim orders of 18th November 2021 vacated, and the claimant ordered to pay the costs of the application. The main suit remains pending.

Key legal issues

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01

Whether the court has jurisdiction over the dispute

Holding

The court has jurisdiction: the trade union has locus standi to sue for its members, and the exhaustion objection fails because the grievants are employees of a private company, not county public officers

Reasoning

Jurisdiction flows from Article 162(2)(a) and section 12 of the ELRC Act. Trade unions may sue for members under Article 258; a recognition agreement is not a prerequisite. The respondent is a company limited by shares independent of the County Public Service Board, so the statutory internal appeal mechanisms relied on do not apply to the grievants.

p. 4
02

Whether the preliminary objection on prematurity and exhaustion is merited

Holding

It is not merited and must fall on its face

Reasoning

The exhaustion doctrine requires exhaustion of dispute resolution mechanisms established by law, but sections 77 of the County Governments Act and 85 and 86 of the Public Service Commission Act apply to county public service appeals from the Board, which is not the respondent's relationship with its employees.

p. 4
03

Whether the interlocutory orders sought in the motion should be granted

Holding

All prayers declined; the interim orders of 18 November 2021 are vacated

Reasoning

The anti-victimisation prayer failed for want of evidence since members were already out of employment; the stay of termination would amount to interlocutory reinstatement of a crystallised dismissal; and barring replacement hiring would paralyse an essential water service provider to the detriment of the public.

p. 5

Legal principles established

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  • A trade union has locus standi to sue on behalf of its members and does not require a recognition agreement to do so; membership is a question of fact not amenable to determination on a preliminary objection
  • Employees of a company incorporated under the Companies Act, not recruited by the County Public Service Board, are not governed by the internal appeal mechanisms in section 77 of the County Governments Act or sections 85 and 86 of the Public Service Commission Act
  • The court cannot stay a termination that has crystallised, as that would amount to reinstatement at the interlocutory stage
  • Where a large number of employees has been dismissed, the court will not bar an essential service provider from filling vacancies pending trial

Court orders

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  1. 1.The Claimant's Notice of Motion dated 15th November 2021 is declined
  2. 2.The interim orders granted on 18th November 2021 are vacated
  3. 3.The claimant will pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 50, 159, 162(2)(a), 165(5), 258, 260
  • Employment and Labour Relations Court ActSection 12
  • Employment ActSections 5, 87
  • County Governments ActSection 77
  • Public Service Commission ActSections 85, 86
  • Fair Administrative Action Act, 2015Section 9(1)(2)(3)(4)
  • Industrial Court ActSections 12, 74
  • Labour Relations Act, 2007Sections 2, 81, Fourth Schedule
  • Companies Act Cap 486
  • ELRC Procedure RulesRule 28(3)

Cases cited (11)

  • United States International University (USISU) v The Attorney General and others
    [2012] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Giella v Cassman Brown & Company Limited
    [1973] EA
  • Jacinta Sekoh Ochineg v Kenya Pipeline Limited
    [2017] eKLR
  • Olive Mwihaki Mugendi and another v Okiya Omtata Okoiti & 4 others
    [2016] eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Modern Soap Factory v Kenya Shoe and Leather Workers Union
    Civil Appeal No 37 of 2019
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others
    [2015] eKLR
  • Joab MehtaOudia v Coffee Development Board of Trustees
    [2014] eKLR
  • Evans Mumo Mwangangi v Kitui County Public Service Board & another
    [2016] eKLR
  • Tom Otieno Odongo v Cabinet Secretary Ministry of Labour Social Security & Services & National Social Security Fund Board of Trustees
    Cause No 1174 of 2013
Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya County Government Workers Union v Bomet Water & Sanitation Company Limited [2022] KEELRC 849 (KLR)", Case Analysis (2022). Not stated in the judgment (Claimant's Notice of Motion dated 15th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/849/eng@2022-02-10

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