Kenya Union of Water and Sewerage Employees v Nairobi City Water and Sewerage Company Limited
The bottom line
#The Employment Court refused to order Nairobi Water to deposit Ksh. 31 million in disputed agency fees, ruling the dispute must be resolved at a full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Respondent's replying affidavit should be struck out as referring to a wrong date of the application and being filed out of time
- 2.Whether there is a clear case to warrant issuance of an order compelling the Respondent to deposit the sum of Ksh. 31,174,210 in court pending trial
Key legal issues
#Validity of the replying affidavit
Objection rejected; the mis-description of the application date is a technicality and late filing was cured by the court's order of 27th January 2025 allowing service out of time
Order 19 Rule 7 permits reception of affidavits notwithstanding defects; Order 19 Rule 6 confines striking out to scandalous, irrelevant or oppressive affidavits. The Claimant raised none of those grounds, and the affidavit's content otherwise speaks to the matters raised in the application. Article 159(2)(d) and section 20(1) of the ELRC Act favour substantive justice over technicalities.
Whether interim deposit order should issue
Application dismissed; disputed interpretation of the CBA and Ministerial Order means the claimed Ksh. 31,174,210 cannot be established without a full trial
The parties disagree whether the Ministerial Order related back to the CBA's effective date of 1st July 2021 or took effect on 3rd February 2023, and whether the CBA survived its sunset date of 30th June 2023. These disputed questions of interpretation can only be resolved through full trial, so no clear case for a deposit order was made.
Legal principles established
#- A court may receive an affidavit notwithstanding defects in description, form or technical irregularity under Order 19 Rule 7 of the Civil Procedure Rules
- An affidavit may be struck out only if scandalous, irrelevant or oppressive under Order 19 Rule 6
- Purely technical objections to affidavit evidence are rejected in line with Article 159(2)(d) of the Constitution
Court orders
#- 1.The objection to the replying affidavit is rejected
- 2.The application dated 27th May 2024 is dismissed
- 3.Costs of the application to abide the results of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 20(1); Article 162(2) of the Constitution (employment and labour relations jurisdiction)
Relief refused
#Order compelling the Respondent to resume deduction of agency fees and deposit Ksh. 31,174,210 into the Claimant's account
Whether the amount is due is a matter for full trial; there is disagreement on interpretation of the CBA and the Ministerial Order
Order compelling the Respondent to deposit the aforesaid amount in court pending determination of the application and trial
Same - disputed interpretation of the CBA vis-a-vis the Ministerial Order can only be resolved at trial
Costs of the application borne by the Respondent
Costs ordered to abide the results of the suit instead
Costs
Costs of the application to abide the results of the suit.
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.
The court may receive any affidavit sworn for the purpose of being used in any suit notwithstanding any defect by misdescription of the parties or otherwise in the title or other irregularity in the form thereof or on any technicality.
Rule 6 of the Order entitles the court to strike out an affidavit only if it is scandalous, irrelevant or oppressive.
The foregoing demonstrates that the Claimant's objection to the replying affidavit is purely technical. It does not go to the substance of the affidavit. In the premises, it (the objection) is rejected.
Having regard to the foregoing, the court declines to grant the request in the application dated 27th May 2024.
As such, the application is dismissed.
Costs of the application to abide the results of the suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Water and Sewerage Employees v Nairobi City Water and Sewerage Company Limited", Case Analysis (2026). Employment and Labour Relations Cause E402 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2575/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.