https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1507

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC CAUSE NO. E068 OF 2025 (Before Hon. Lady Justice Anna Ngibuini Mwaure) COUNTY GOVERNMENT WORKERS UNION………….……………….….….....… CLAIMANT VERSUS NAKURU WATER AND SANITATION COMPANY…….……………………... RESPONDENT RULING Introduction 1. The Respondent/Applicant filed a Notice of Motion dated 18th December 2025 under Certificate of urgency seeking the following orders that: 1.Spent 2.This Honourable Court be pleased to issue an order striking out the Memorandum of Claim dated 29th October, 2025 and all accompanying documents for want of jurisdiction. 3.This Honourable Court be pleased to issue an order striking out the Memorandum of Claim dated 29th October, 2025 and all ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 1 OF accompanying documents for being res judicata. 4.The Claimant be condemned to pay the costs of this application. 5.This Honourable court be pleased to grant any other order it may deem fit. 2. The application is brought under Article 159 of the Constitution of Kenya, section 47 of the Employment and Labour Relations Court(Procedure) Rules, Order 2 Rule 4, Rule 15, Order 51 Rule 1 of the Civil Procedure Rules, section 1A, 1B and 3A of the Civil Procedure Act. Respondent/Applicant’s case 3. The application is supported by the affidavit of James Ng’anga Gachathi, the Respondent/Applicant’s Managing Director, dated even date as the application. 4. The Respondent/Applicant avers that although it had entered into a Collective Bargaining Agreement (CBA) dated 12th October 2021 with the Claimant/Respondent, the same was negotiated and registered per incuriam, contrary to binding ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 2 OF precedent. He cited the case in Civil Appeal No. 18 of 2013, National Union of Water and Sewerage Employees & 3 Others v Nairobi Water and Sewerage Employees Limited [2018] eKLR, where the Court of Appeal held that the Claimant/Respondent union was not properly suited to represent employees of water companies. This position was reaffirmed in Nairobi ELRC CBA No. 34 of 2020, Kenya County Government Workers Union v Nairobi Water and Sewerage Company Limited & Another. 5. The Respondent/Applicant emphasized that it is a licensed water service provider under the Water Act, 2016, regulated by the Water Services Regulatory Board (WASREB), and its employees fall squarely within the category of water company employees envisaged in the Court of Appeal decision. 6. The Respondent/Applicant further avers that the CBA expired in July 2024 after its 36-month term, and that the Salaries and Remuneration Commission (SRC) was not consulted as constitutionally required, thereby cementing the nullity. He noted that the Respondent had already challenged the legality of the CBA in ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 3 OF ELRC Petitions E013, E014, and E015 of 2024, which were dismissed, and has since lodged an appeal to COACA No. E080 of 2025 which is pending before the Court of Appeal. 7. The Respondent/Applicant avers that it has derecognized the Claimant/Respondent union, revoked the recognition agreement of 2nd December 2014, and formally notified the Commissioner for Labour on 17th September 2025, citing that the Claimant/Respondent no longer represents a simple majority of workers, most of whom resigned in favour of the Water Services Workers Union. 8. The Respondent/Applicant therefore urged the Court to strike out the Claimant’s application and memorandum of claim dated 29th October 2025 as incompetent, res judicata, and lacking jurisdiction. Claimant/Respondent’s replying affidavit 9. The Claimant/Respondent opposed the application vide a replying affidavit sworn by Roba S. Duba, the Claimant/Respondent’s National General Secretary, dated 16th February 2026. ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 4 OF 10. The Claimant/Respondent avers that the Respondent/Applicant improperly filed a counter-application before the inter partes hearing of its application, which had been filed first. Such conduct, the Claimant/Respondent argued, amounts to an abuse of the court process as the Respondent/Applicant ought to have filed a response rather than a parallel application. 11. To support this position, the Claimant/Respondent cited the case of Juliana Achieng Owino v Rose Obama & Another, ELC No. 208 of 2013, where the court held that counter-applications are anomalous and amount to abuse of process. The Claimant/Respondent further cited the case of Kenya Plantation & Agricultural Workers Union v P.J. Dave Flowers Ltd [2015] eKLR, where the court observed that parties served with interlocutory motions should file grounds of opposition or replying affidavits, not counter-applications. Additionally, the Claimant/Respondent cited the case of Unilever Tea Kenya Limited v Kenya Plantation & Agricultural Workers Union [2014] eKLR, where Radido J.(as he ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 5 OF was then) dismissed a similar motion as incompetent and an abuse of process. 12. The Claimant/Respondent further avers that Article 41 and Article 36 of the Constitution guarantee the right to union membership and association, and that the union was duly recognized under a Recognition Agreement dated 2nd December 2014, representing a simple majority of employees. 13. The Claimant/Respondent emphasizes that the parties voluntarily negotiated and registered the CBA on 12th October 2021, with minutes of negotiations dated 28th October 2021, and that the court has jurisdiction to enforce the same. 14. In response to the Respondent/Applicant’s reliance on Civil Appeal No. 18 of 2013, National Union of Water and Sewerage Employees & 3 Others v Nairobi Water and Sewerage Employees Limited [2018] eKLR, the Claimant/Respondent contends that the Court of Appeal held that the ELRC cannot interfere with a duly registered CBA, and therefore the present CBA remains valid and enforceable. ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 6 OF 15. The Claimant/Respondent distinguishes Nairobi ELRC CBA No. 34 of 2020 as relating to different parties and circumstances, and further cites the case of Wajir Wasco Ltd v Mohamed & Others [2024] KECA 937 (KLR) to affirm that water sector employees fall within the county government framework. 16. The Claimant/Respondent argued that the Salaries and Remuneration Commission’s approval mandate arose only after 2023 and cannot retrospectively affect the 2021 CBA registered on 23rd November 2021. He notes that ELRC Petitions E013, E014, and E015 of 2024 were determined on 28th March 2025 in their favour, affirming recognition and majority membership. He concludes that the pending appeals in Nakuru COACA E080 of 2025 and E087 of 2025 are distinct, that the present suit is properly before the court, and that granting the Respondent’s prayers would perpetuate breach of Article 41 rights and prejudice union members. 17. The Claimant/Respondent therefore urges the dismissal of the Respondent’s application as incompetent, frivolous, vexatious, and an abuse of the court process. ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 7 OF 18. Parties were directed to file their respective written submissions. Respondent/Applicant’s written submissions 19. The Respondent submitted that the Claimant’s Memorandum of Claim dated 29th October 2025 should be struck out for want of jurisdiction and for being res judicata. The Respondent/Applicant argued that the doctrine of res judicata under section 7 of the Civil Procedure Act applies, as the issues raised were conclusively determined in National Union of Water and Sewerage Employees & 3 Others v Nairobi Water and Sewerage Employees Limited [2018] eKLR, where the Court of Appeal held that the Claimant/Respondent union was not properly suited to represent water sector employees. This position was reaffirmed in the case Kenya County Government Workers Union v Nairobi Water and Sewerage Company Limited & National Union of Water and Sewerage Employees [2021] KEELRC 2303 (KLR). 20. The Respondent/Applicant further relied on the cases of Kenya Commercial Bank Ltd & another v Muiri Coffee Estate Ltd & 3 Others ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 8 OF [2016] KESC 6 (KLR) and Bernard Mugo Ndegwa v James Nderitu Githae & 2 Others [2010] KEHC 3922 (KLR) to outline the elements of res judicata, and Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR) to emphasize the principle of finality in litigation. On jurisdiction, the Respondent/Applicant relied on the locus classicus Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), where the Court held that jurisdiction is everything and without it a court must down its tools. 21. Accordingly, the Respondent/Applicant prays that the Claimant’s suit be dismissed with costs for offending the doctrine of res judicata and for want of jurisdiction. Claimant/Respondent’s written submissions 22. The Claimant submitted that Section 7 of the Civil Procedure Act codifies the doctrine of res judicata, which bars re-litigation of matters already heard and finally determined by a competent court between the same parties. However, the Claimant/Respondent argued that the Respondent’s reliance on res judicata ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) 19 PAGE 9 OF is misplaced, as the issues in Nakuru ELRCPETs E013, E014 and E015 of 2024 were distinct from the present claim. In support, the Claimant relied on the case of John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), which restated the elements of res judicata, and Gilbert Otieno Okite v Kenya Sugar Research Foundation [2022] KEELRC 728 (KLR), where the court held that similar issues not conclusively determined cannot render a subsequent suit res judicata. The Claimant/Respondent further relied on the case of Kenya Private Universities Workers Union v KCA University [2026] KEELRC 73 (KLR), where the court found that overlapping issues did not bar adjudication of new claims. 23. The Claimant/Respondent emphasized that the present matter seeks enforcement of the CBA dated 12th October 2021 and payment of union dues, which were never determined in the earlier petitions. The Claimant/Respondent also relied on DT Dobie & Company (Kenya) Ltd v Muchina & Another [1980] KECA 3 (KLR), cautioning courts against ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 10 dismissing suits at the interlocutory stage without full trial. 24. Accordingly, the Claimant/Respondent submitted that the Respondent’s application dated 18th December 2025 is devoid of merit, places the Court in an awkward position of prematurely determining the merits, and ought to be dismissed with costs. Analysis and determination 25. The court has considered the application, supporting affidavit, replying affidavit, together with rival submissions on record; the singular issue for determination is whether the application to find the claim as fit to be struck out due to lack of jurisdiction by the court and it being res judicata is merited. 26. Section 7 of the Civil Procedure Act provides as follows: “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 11 court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 27. In John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others(Supra), the Supreme Court held as follows: “For res judicata to be invoked in a civil matter, the following elements had to be demonstrated: a.there was a former judgment or order which was final; b.the judgment or order was on merit; c. the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d.there had to be between the first and the second action identical parties, subject matter and cause of action. The doctrine of res judicata was based on the principle of finality, which was a matter of ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 12 public policy. The principle of finality was one of the pillars upon which the judicial system was founded, and the doctrine of res judicata prevented a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensured that litigation came to an end, and the verdict duly translated into fruit for one party, and liability for another party, conclusively.” 28. In Kenya Commercial Bank Ltd & another v Muiri Coffee Estate Ltd & 3 Others (Supra) the Supreme Court stated as follows: “Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title, and whether the previous case was determined by a Court of competent ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 13 jurisdiction. This test is summarized in Bernard Mugo Ndegwa v. James Nderitu Githae & 2 Others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 29. In this instant case, the Claimant/Respondent commenced this suit vide a Memorandum of Claim dated 29th October 2025 seeking the following orders: a. A declaration do issue that the rights of the Claimant’s members under Article 41 of the Constitution of Kenya, 2010, as read with Section 48, 50, 54 and 59 of the Labour Relations Act No. 14 of 2007 and section 19 of the Employment Act, 2007, have been violated by the Respondents. b. An order do issue compelling the Respondent to comply with the terms of the Collective Bargaining Agreement dated 12th October, 2021, between the Claimant and the Respondent. c. An order do issue compelling the Respondent to furnish the Claimant with a certified Statement of Accounts together with the full schedule of the paying members in relation to the Claimant’s ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 14 deducted and remitted union dues from 2021 to date. d. An order do issue restraining the Respondent from withholding any union dues payable to the Claimant forthwith. e. An order do issue compelling the Respondents to remit and/or pay from their own funds all union dues to the Claimant and for the years between 2021 and 2024 in the sum of Kenya Shillings Seven Million (Kshs.7,000,000/=) together with all outstanding union dues, to the Claimant’s official bank account. f. An award of general damages against the Respondent for the violation of and or breach of the Claimant’s members’ Constitutional rights. g. Fines to issue against the Respondent pursuant to Section 82 of the Labour Relations Act No. 14 of 2007. h. Costs of the suit and interest on the sums awarded at Court rates from the date of default be awarded to the Claimant. i. Any other relief that the court may deem fit to grant. 30. The Respondent/Applicant filed the present application contending that the CBA dated 12th October 2021 was negotiated and registered per ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 15 incuriam, contrary to the binding precedent in Civil Appeal No. 18 of 2013, National Union of Water and Sewerage Employees & 3 Others v Nairobi Water and Sewerage Employees Limited [2018] eKLR, and reaffirmed in Nairobi ELRC CBA No. 34 of 2020, Kenya County Government Workers Union v Nairobi Water and Sewerage Company Limited & Another. The Respondent/Applicant emphasized that, as a licensed water service provider under the Water Act, 2016 and regulated by WASREB, its employees fall within the category envisaged by the Court of Appeal. The Respondent further averred that the CBA expired in July 2024 after its 36-month term, and that the Salaries and Remuneration Commission was not consulted, cementing its nullity. The Respondent/Applicant noted that the legality of the CBA had already been challenged in ELRC Petitions E013, E014, and E015 of 2024, which were dismissed, and that an appeal, COACA No. E080 of 2025, is pending before the Court of Appeal. The Respondent has since derecognized the Claimant union, revoked the recognition agreement of 2nd December 2014, and notified the Commissioner for Labour on 17th September 2025, citing loss of majority membership PAGE 16 ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 in favour of the Water Services Workers Union. Conversely, the Claimant/Respondent argues that reliance on res judicata is misplaced, as the issues in the earlier petitions were distinct, and the present memorandum of claim seeks enforcement of the CBA registered on 12th October 2021. 31. The court is of the view that the Respondent/Applicant’s application does not conform to the issues of res judicata as set out in section 7 of the Civil Procedure Act, and the said issues brought out in National Union of Water and Sewerage Employees & 3 Others v Nairobi Water and Sewerage Company Limited (Supra) are not the same but totally different issues with different parties. The case of National Union of Water and Sewerage employees referred to obviously had different parties as the party in this case and in particular, the Claimant is County Government Workers Union raised in this case are quite different from those raised in and handled by the Court of Appeal. The provision of res judicata have not been satisfied and so the Respondent’s application of 18th December 2023 must fail. It is dismissed accordingly. ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 17 32. Each party will meet its costs of the Application as per the court’s inherent discretion. Order accordingly. Dated, Signed and Delivered virtually at Nakuru this 4th Day of June, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 18 Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC CAUSE NO. E068 OF 2025 RULING(STRIKE OUT) OF 19 PAGE 19