National Union for Water and Sewerage Employees Union v Garissa Water and Sewerage Company Ltd; First Community Bank Garissa Branch & another (Garnishee) (Cause 1162 of 2018) [2023] KEELRC 2145 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether National Union for Water and Sewerage (NUWASE) Garissa Branch had locus standi to bring the application dated February 22, 2023
- 2.Whether the deponent to the affidavit in support had capacity to swear it as General Secretary of the claimant, not being the registered Secretary
- 3.Whether the amended Notice of Motion dated May 2, 2023 seeking reinstatement of the garnishee order nisi could be granted
Key legal issues
#Locus standi of an unregistered branch union and capacity of the deponent
The preliminary objection was merited; the applicant did not demonstrate it met the statutory threshold for authorised representation, so its application of February 22, 2023 was incompetent and was struck out
Section 35(6) of the Labour Relations Act bars any person not registered by the Registrar from acting as an official of a trade union or branch, and section 2(a) defines an authorised representative as the general secretary or a person appointed in writing. The claimant produced a register extract and a Registrar's letter showing a change of name and registered officers; the applicant/interested party adduced nothing in rebuttal and thus failed to demonstrate the statutory threshold.
Reinstatement of a garnishee order nisi already made absolute
The relief was not available because the order nisi had been made absolute on December 1, 2020 by Mbaru J; any funds still held by the garnishee are recoverable through execution
Once the garnishee order nisi was made absolute, the funds held by the garnishee became subject to execution in satisfaction of the decretal sum. An application for reinstatement of the order nisi misconceives the legal position; the proper course, if the garnishee holds funds of the judgment debtor in defiance of the order, is execution against the garnishee.
Legal principles established
#- No person not registered by the Registrar may act or purport to act as an official of a trade union or any branch, and an authorised representative is the general secretary or a person appointed in writing by such representative
Court orders
#- 1.The preliminary objection dated February 27, 2023 is allowed
- 2.The application dated February 22, 2023 is found incompetent and struck out with costs
- 3.The funds held by the garnishee ought to have been subject to execution to the extent and in satisfaction of the decretal sum; any outstanding issue is one for execution against the garnishee
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated in the judgment; Employment and Labour Relations Court seized of a preliminary objection and a garnishee matter
Relief refused
#Reinstatement of the garnishee order nisi issued on August 20, 2020
The order nisi had already been made absolute by Mbaru J on December 1, 2020, so there was nothing to reinstate; the matter was one for execution
Costs
The application dated February 22, 2023 struck out with costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
no person who is not registered by the Registrar in accordance with this section shall act or purport to act as an oficial of a trade union, employers organisation or federation or any branch.
The applicant in the application dated February 22, 2023 has not demonstrated that it meets these threshold set by law. The preliminary objection is therefore found merited and is allowed with the consequence that the application dated February 22, 2023 is hereby found incompetent and is hereby struck out with costs.
the funds held by the garnishee ought to have been subject to execution to the extent and in satisfaction of the decretal sum. The matter therefore as stands now is an issue for execution against the garnishee if they should be holding any funds on behalf of the judgment debtor
Issues in the judgment
#The judgment cites section 35(5) of the Labour Relations Act in the preliminary objection but quotes section 35(6) as the operative provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Union for Water and Sewerage Employees Union v Garissa Water and Sewerage Company Ltd; First Community Bank Garissa Branch & another (Garnishee) (Cause 1162 of 2018) [2023] KEELRC 2145 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2145/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.