https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1670

Kenya Union of Commercial, Food and Allied Workers v Nol-Turesh Loitokitok Water & Sanitation Company & another (Cause 1528 of 2018) [2026] KEELRC 1670 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1670 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause 1528 of 2018 ON Makau, J June 18, 2026 Between Kenya Union of Commercial, Food And Allied Workers Claimant and Nol-Turesh Loitokitok Water & Sanitation Company 1st Respondent National Water Conservation & Pipeline Corporation 2nd Respondent Ruling Introduction 1.This Ruling relates to the Notice of Motion dated 23rd May 2024, brought under the judicature Act, Civil Procedure Act and Employment & Labour Relations Court Act, and it seeks the following orders:-a.That this Application be and is hereby certified urgent for hearing ex-parte in the first instance.b.That an order be and is hereby issued summoning the Respondent's Board members and its top officers namely Elijah Tampaine, Gedion Kipaya Ketente, Jiliam Kerina, Ann Muthusi, Joseph Roimen, Eng. John K. Kieti, Dr. Leina Mpoke, Hon Catherine Mutanu, Lillian Khaemba, Joseph Mapena and Jackson Mpaapa, the Board Chairman, Managing Director, Board Members, Technical Service Manager, Finance & Administration Manager and Human Resource Manager respectively to personally attend Court to show cause why they should not be jailed under the law for disobedience of the Judgment and decree of the Court.c.That an order be and is hereby issued directing the Respondent's Board members and its top officers to personally appear in Court to show cause why the corporate veil shielding them from personal liability should not be lifted to hold them liable to settle the decree.d.That an order be and is hereby issued directing the OCS, Sultan Hamud Police Station, the OCS Wote Police Station, the OCS Machakos Police Station and the OCS Kajiado Police Station, to arrest and avail in this Court the said Board members and top officers on a date and time as the Court may direct.e.The Honourable Court do and hereby cites the said Board members and Top officers of the Respondent for contempt of Court.f.The Honourable Court do and hereby punishes the said Board Members and Top officers of the Respondent for contempt of Court.g.The Honourable Court do and hereby re-issues the decree to include the said Board members and top officers for execution against each of them.h.The Honourable Court be pleased to issue any other order found fit and just to meet the ends of justice. 2.The Motion is brought by the Claimant/Applicant and is supported by the Affidavits of Mike O. Oranga sworn on 23rd May 2024 and 26th February 2026, It is opposed by the 1st Respondent through a Replying Affidavit sworn by Gideon Kentente on 29th October 2024 and Grounds of Opposition dated 17th February 2026. 3.The Court directed the 1st Respondent to file an affidavit on budgetary allocations, and two further Affidavits sworn by Joseph Mwangi Wanjohi on 16th October 2025 and 2nd December 2025 respectively. The motion was then disposed of by written Submissions. Facts 4.The Claimant/Applicant filed suit against the Respondents on 15th November 2018 challenging summary dismissal of forty-eight (48) employees (grievants). On 23rd April 2020, the Court delivered judgment finding the 1st Respondent liable to pay the grievants their outstanding wages, allowances, terminal benefits and twelve months' salary compensation, but the 2nd Respondent was released from liability. 5.On 21st September 2023, the Court delivered a final Judgment on quantum against the 1st Respondent in the total sum of Kshs. 157,331,253.48 together with costs of Kshs. 100,000/-. A Decree was issued on 20th November 2023 and was served upon the 1st Respondent. 6.The efforts by the claimant to persuade the 1st Respondent to honour the Judgment and Decree failed and execution by a warrant of attachment of movable property was issued to BEMAC Auctioneers. However, the Auctioneer returned the warrants unexecuted stating that the 1st Respondent had no valuable property in its name. hence the instant motion 7.The Claimant/Applicant contends that the 1st Respondent is a private company registered under the Companies Act, 2015 and as such it is not state organ. It however, appreciated that the 1st Respondent is wholly owned by the County Governments of Kajiado, Makueni and Machakos, as the shareholders, and who appoint representatives to sit on its Board. 8.The Claimant/Applicant further contends that the 1st Respondent supplies water to customers and collects revenue, but has chosen not to use funds from its bank accounts to settle the decretal amount. The claimant listed eight accounts that are used by the 1st Respondent to collect funds from customers but failed to settle the decreed sum. 9.The 1st Respondent contended in Replying Affidavit sworn on 29th October 2024 that the County Governments of Makueni, Machakos and Kajiado ought to be the directors/shareholders, and not the persons named in the Application. The 1st Respondent also states that it is willing to settle the decretal sum but does not have the financial muscle to do so and is engaging in negotiations with the three County Governments to allocate funds. 10.By a Grounds of Opposition dated 17th February 2026, the 1st Respondent contends that it is a Government entity owned and controlled by County Governments and as such instant motion is incompetent and bad in law by dint of Section 21(4) of the Government Proceedings Act, Cap 40 Laws of Kenya. 11.Having considered the Notice of Motion dated 23rd May 2024, the rival Affidavits, Grounds of Opposition the written Submissions filed, the main issues for determination are:-i.Whether the 1st Respondent is a Government entity for purposes of protection under the Government Proceedings Act.ii.Whether the reliefs sought, by the applicant should be granted. Analysis (a) Government entity 12.The 1st Respondent contends that it is a Water Service Provider established under Section 77 of the Water Act by the County Governments of Kajiado, Makueni and Machakos and incorporated under the Companies Act, with the three Counties as the principal shareholders. 13.The 1st Respondent has not disputed that it is registered under the Companies Act but relies on Regulation 8, 12 and 13 of the Water Services Regulations, to urge that it is a state organ that it is protected from execution under the Government Proceedings Act. Regulation 8 provides that a county government may establish a county water services provider as a body corporate with perpetual succession, capable of suing and being sued. 14.Regulation 12 and 13 of the said Regulations, provide that the funds and assets of a county water services provider consist of monies appropriated by the county assembly, monies accruing from tariffs, fees and other charges, and that county governments may provide financial assistance. 15.The 1st Respondent also places reliance on the case of Association of Retirement Benefits Schemes v. Attorney General & 3 others (2013) eKLR, where the Court adopted the test for determining whether an entity is a Government body, from the Indian Supreme Court case of International Airport Authority (R.D Shetty) v. The International Airport Authority of India & Ors. The test includes consideration of whether share capital is held by Government and whether financial assistance of the State meets almost the entire expenditure of the Corporation. 16.The 1st Respondent submits that it fits the bill of an agency of the State or public body as it performs functions of a public nature and is fully owned by the three county Governments and thus protected under Section 21 of the Government Proceedings Act. 17.On the other hand, the Claimant/Applicant, contends that the 1st Respondent is not a state body established under the Constitution of Kenya 2010 or a body corporate formed under any Act of Parliament. It refers to Article 260 of the Constitution of Kenya 2010, which defines "State" and "State organ" and contends that the 1st Respondent is established under the Companies Act, Cap 486 and that the County Governments are merely shareholders in a private entity. 18.The Claimant/Applicant further submits that the 1st Respondent charges for water services from which it is required to meet its financial obligations and that the 1st Respondent is not a Statutory Body or a State Organ whose finances would qualify as public funds. 19.Section 21(4) of the Government Proceedings Act provides that:-“Satisfaction of orders against the Government;1.Where in any civil proceedings by or against the Government, or in proceedings in connection with any arbitration in which the Government is a party, any order (including an order for costs) is made by any court in favour of any person against the Government, or against a Government department, or against an officer of the Government as such, the proper officer of the court shall, on an application in that behalf made by or on behalf of that person at any time after the expiration of twenty-one days from the date of the order or, in case the order provides for the payment of costs and the costs require to be taxed, at any time after the costs have been taxed, whichever is the later, issue to that person a certificate in the prescribed form containing particulars of the order:Provided that, if the court so directs, a separate certificate shall be issued with respect to the costs (if any) ordered to be paid to the applicant.2.A copy of any certificate issued under this section may be served by the person in whose favour the order is made upon the Attorney-General.3.If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Accounting Officer for the Government department concerned shall, subject as hereinafter provided, pay to the person entitled or to his advocate the amount appearing by the certificate to be due to him together with interest, if any, lawfully due thereon:Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof, shall be suspended, and if the certificate has not been issued may order any such direction to be inserted therein.4.Save as aforesaid, no execution or attachment or process in the nature thereof shall be issued out of any such court for enforcing payment by the Government of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Government, or any Government department, or any officer of the Government as such, of any money or costs.5.This section shall, with necessary modifications, apply to any civil proceedings by or against a county government, or in any proceedings in connection with any arbitration in which a county government is a party.” 20.The critical question that begs for answer is whether the 1st Respondent, by virtue of being owned by County Governments and performing water services functions, is a Government entity entitled to the protections of Section 21 of the Government Proceedings Act. 21.The 1st Respondent has urged this Court to apply the test from Association of Retirement Benefits Schemes v. Attorney General & 3 others (2013) eKLR and International Airport Authority (R.D Shetty) v. The International Airport Authority of India & Ors. 22.In the Association of Retirement Benefits Schemes v. Attorney General & 3 others (2013) eKLR Mativo J (as he then was) while adopting the decision of the Supreme Court of India in International Airport Authority (R.D Shetty) v. The International Airport Authority of India & Ors [1979] 1 SCR 1042 held that:-“I adopt the above reasoning and would add that based on criteria number (c), (d) and (e), the interested party fits the bill as an agency of the State or public body as it performs functions of a public nature and enjoy monopoly with regard to services they provide. Secondly, the definition of a public body by section 3(1) of the Interpretation and General Provisions Act points out the public nature of the 1st and 2nd respondents. “Public body” has been defined therein as:“any authority, board, commission, committee or other body, whether paid or unpaid, which is invested with or performing, whether permanently or temporarily, functions of a public nature” 23.The Judge went on to state that:-“I also find myself in agreement with Onguto J in earlier cited case where he stated that the phrase “public entity” under Article 227 should include statutory bodies, parastatals, bodies established by statute but managed and maintained privately such as universities and professional societies … and also any private bodies fulfilling key functions under state supervision.” 24.In the instant case, the 1st Respondent is incorporated under the Companies Act and is therefore distinct legal entity from the County Governments, who are its shareholders. However, under Regulation 12 and 13 of the Water Services Regulations, a County Water Services Provider gets appropriation from county assemblies and financial support from county governments. 25.Regulation 12 provides as follows:-“The funds of a county water service provider shall consist of­­ –a.Such monies as may be appropriated by the county assembly for the purposes of the county water services provider;b.…” 26.Regulation 13 then provides for County government financial support to the water service provider as follows:-“(1)pursuant to regulation 12(1)(a), the county government may in appropriate cases provide financial assistance to enable a water service provider, which satisfies the criteria stipulated in the county water services strategy, meet a portion of its operation and maintenance costs.(2)the county government may additionally set up a Dedicated Fund into which the county government and others may place funds for supporting the provision of water service to undeserved areas.(3)…” 27.Having considered the facts of the case and the above regulation, and having sought guidance from the judicial precedents cited in the submissions by the parties, I am satisfied that the 1st Respondent is a public body or State agency. It is established by three county governments who hold 100% shares of the company. It is established to perform public function and it enjoys a monopoly in providing the service. It is amenable to receive funds and financial assistance from the county governments for operation and maintenance cost. Consequently, I find and hold that the 1st Respondent is a public body/state agency which enjoys protection from execution under Section 21(4) of the Government Proceedings Act, Cap 40 Laws of Kenya, including execution in the manner sought by the claimant in the instant motion. Reliefs sought 28.The 1st Respondent, in its Grounds of Opposition, stated that the contempt procedure was commenced before obtaining an order of mandamus in Judicial Review proceedings and I find merits in that contention. The contempt proceedings initiated against its officers by the claimant are premature as long as there is no writ of mandamus obtained against the officers in Judicial Review proceedings. 29.In the case of Republic v. The Attorney General & Another Exparte James Alfred Koroso (2013) eKLR, Odunga J (as he then was), held that before seeking to punish a public officer for contempt of court for failure by the government to comply with a court decree, the applicant must first institute Judicial Review proceedings and obtain order of mandamus to compel the officer to comply with the decree. The Judge stated that:-“Where therefore a public officer decline to perform the duty after the issuance of an order of mandamus, his/her action amounts to insubordination and contempt of court hence an action may perfectly be commenced to have him cited for contempt. Such contempt proceedings are no longer execution proceedings but meant to show the court’s displeasure at the failure by a servant of the state to comply with the directive of the court given at the instance of the Republic, the employer of the concerned public officer and to uphold the dignity and authority of the court.” 30.The above decision is on all fours with the instant case and I fully adopt the same legal reasoning in the instant motion as the claimant has sought to cite the officers of a public body for contempt before seeking mandamus against them through judicial review procedure. Conclusiona.I have found that the 1st Respondent is a Government entity entitled to the full protection of Section 21(4) of the Government Proceedings Act. I have further found that the Application for contempt proceedings against the named individuals is premature as no writ of mandamus was sought and obtained against them before moving the court for contempt. Consequently, I dismiss the Notice of Motion dated 23rd May 2024, but with no costs since the 1st Respondent has occasioned the post-judgment motion by its failure to pay the decreed sum. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 18TH DAY OF JUNE, 2026.ONESMUS MAKAUJUDGEAppearance:Muunda for ClaimantNgetich for Respondent