Kenya Union of Commercial, Food and Allied Workers v Gusii Water & Sanitation Company (Cause 3 of 2022) [2025] KEELRC 1003 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union's bid to jail a water company MD, ruling that courts cannot force employers to sign a Collective Bargaining Agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether the court's Judgment of 18th July 2024 obliged the respondent to sign a Collective Bargaining Agreement
No. The judgment adopted the Claimant's proposals as terms of service for unionisable employees for 24 months; it did not incorporate them into a CBA or order its signature
A CBA is a written agreement between a trade union and an employer which becomes enforceable only upon registration by the ELRC. The court is not party to such an agreement and cannot insert terms into it. Bound by the Court of Appeal in TSC v KNUT, the learned Judge in the prior judgment was filling the gap created by the absence of consensus by adopting the proposals as an order of the court, making them terms and conditions of service.
Whether the Respondent's Managing Director was guilty of contempt of court
No. The applicant failed to prove contempt to the requisite standard
Contempt requires proof of clear order terms, knowledge, breach and deliberateness to a standard higher than balance of probabilities. The alleged contempt rested on failure to sign the draft CBA, which was never ordered, and on de-clustering, for which no evidence of deliberate design to defeat the judgment was adduced. The applicant also failed to show any members among the respondent's employees affected by the order.
Whether the respondent's employees had withdrawn membership from the applicant union and joined KUWASE
The respondent adduced evidence that employees moved to KUWASE effective early 2024, while the applicant failed to produce a list of its current membership
The Recognition Agreement remained in force as it had not been revoked under the Labour Relations Act, but the applicant had to demonstrate it still had members among the respondent's unionisable employees. The respondent showed union dues were being deducted and remitted to KUWASE following a Recognition Agreement with it. The court lamented inter-union competition for membership and warned against employer involvement in union shifts.
Legal principles established
#- A Collective Agreement is a written agreement between a trade union and an employer that must be registered by the ELRC before it becomes enforceable, and the court cannot be a party to or impose terms in a collective agreement
- The standard of proof in contempt proceedings is higher than a balance of probabilities, almost but not exactly beyond reasonable doubt, and committal is a last resort
- The elements of civil contempt are: clear and unambiguous terms of the order, knowledge or notice of the terms, breach of the terms, and deliberate conduct
- Collective bargaining is neither compulsory nor automatic; it is grounded on social dialogue, freedom of contract and autonomy of the parties
Court orders
#- 1.The Applicant/Claimant's Notice of Motion dated 8th November 2024 dismissed with no orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Labour Relations Act and the Employment and Labour Relations Court (Procedure) Rules, 2024; contempt invoked under Section 5 of the Judicature Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Gusii Water & Sanitation Company (Cause 3 of 2022) [2025] KEELRC 1003 (KLR)", Case Analysis (2025). Cause No 3 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1003/eng@2025-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.