Kenya Union of Water and Sewerage Employees v Nairobi City Water and Sewerage Company Limited

d. That the court orders the Respondent to bear costs of the application. 3. The application is premised on the grounds appearing on the face thereof. It is also anchored on the supporting and supplementary adavits of one Elijah Otieno Awach, the Claimant’s General Secretary. 4. The aant avers that the parties to the action have a subsisting Recognition Agreement. He contends that pursuant to the agreement, the parties negotiated and registered a CBA on 28th July 2022. 5. The aant avers that the eective date of the CBA was backdated to 1st July 2021 and was to remain in force until 30th June 2023 or until it was replaced by a subsequent CBA. The aant further avers that the Claimant obtained a Ministerial Order dated 3rd February 2023 which directed and authorized the Respondent to start deducting and remitting agency fees under the CBA. 6. The aant avers that after the Claimant served the Respondent with the Ministerial Order, the Respondent deducted and remitted the sum of Ksh. 2,390,054 covering the months of August, September, October and November 2023 but stopped further deductions. The aant contends that the Respondent was supposed to collect the impugned agency fees from 1st July 2021 until the CBA was replaced. As such, he contends that the sum of Ksh. 31,174,210 had not been collected and remitted to the Claimant as at May 2024 and the amount remains outstanding. 7. The aant avers that the Claimant’s eorts to have the Respondent remit the money have hit a dead end thus necessitating the ling of this suit.He avers that the Respondent has no legitimate reason to continue withholding this money. 8. The Respondent has opposed the application. It has led a replying adavit dated 27th December 2024 to anchor its opposition to the motion. 9. The Respondent acknowledges that the parties have a Recognition Agreement and a CBA which was registered as intimated by the Claimant. However, it contends that the Ministerial Order that was served on it directed it to eect deduction of agency fees within 30 days eective 3rd February 2023. As such, it contends that it commenced collection and remittance of agency fees from the aforesaid date. 10. The Respondent avers that the lifespan of the CBA between the parties came to a close on 30th June 2023. As such, it contends that it only collected agency fees from 3rd February 2023 (the date of the Ministerial Order) until 30th June 2023 (the sunset date for the CBA) and remitted the funds to the Claimant. As such, the Respondent denies that there is any agency fees which is still outstanding on account of the impugned CBA. Analysis 11. The Claimant has challenged the validity and admissibility of the replying adavit led by the Respondent on the ground that it refers to a wrong date of the application under consideration and was led out of time. As such, it prays that the adavit be struck out. 12. Order 19 of the Civil Procedure Rules deals with adavit evidence. Rule 7 thereof allows the court to receive in evidence any adavit notwithstanding apparent defects in it. The rule provides, in particular, as follows:‘’The court may receive any adavit 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.’’ https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2575/eng@2026-09-25 2

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13. Rule 6 of the Order entitles the court to strike out an adavit only if it is scandalous, irrelevant or oppressive. The Claimant does not raise any of these as the basis for its request to strike out the replying adavit. 14. The court is alive to the edict in article 159 (2) (d) of the Constitution to administer justice without undue regard to technicalities. This edict is reiterated under section 20 (1) of the Employment and Labour Relations Court Act. 15. The court has considered the Claimant’s objection to the replying adavit in the context of the foresaid provisions of the Constitution and statute. It is apparent that the issue which the Claimant raises concerns a mis-description of the date of the application under consideration in the adavit. Other than this, the content of the adavit speaks to the matters which have been raised in the application. 16. Further, the court record shows that on 27th January 2025, the court allowed the Respondent to serve the Claimant with the adavit under attack out of time. This, in the court’s view, settled the grievance regarding the late ling and service of the adavit. 17. The foregoing demonstrates that the Claimant’s objection to the replying adavit is purely technical. It does not go to the substance of the adavit. In the premises, it (the objection) is rejected. 18. Looking at the positions expressed by the parties on the matter under consideration, it is apparent that there is disagreement of interpretation of the CBA between them vis a vis, the Ministerial Order on agency fees which was issued by the Ministry of Labour on 3rd February 2023. According to the Claimant, the Order related back to the eective date of the CBA (1st July 2021). On the other hand, the Respondent’s position is that the Ministry of Labour advised it (the Respondent) that the Order took eect from 3rd February 2023. 19. It is also apparent that there is disagreement regarding whether the CBA between the parties remained eective after its sunset date. According to the Claimant, it (the CBA) remained eective until a new CBA was agreed on. On the other hand, the Respondent holds the view that the CBA lapsed on its sunset date (30th June 2023) thereby bringing to closure the obligation to continue deducting and remitting the impugned agency fees. 20. The foregoing being the case, it is apparent that there is no clear case to warrant issuance of an order compelling the Respondent to deposit the impugned sum of Ksh. 31,174,210 in court before trial of the case. Whether this amount is actually due and owing is a matter which can only be determined through full trial of the case. Determination 21. Having regard to the foregoing, the court declines to grant the request in the application dated 27th May 2024. 22. As such, the application is dismissed. 23. Costs of the application to abide the results of the suit. DATED, SIGNED AND DELIVERED ON THE 25TH DAY OF SEPTEMBER, 2026 B. O. M. MANANI JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2575/eng@2026-09-25 3

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…………….for the Claimant …………….for the Respondent Order In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2575/eng@2026-09-25 4

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