https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1835

Kenya Union of Water and Sewerage Employees v Attorney General & 11 others (Petition E188 of 2023) [2026] KEELRC 1835 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1835 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E188 of 2023 JK Gakeri, J June 30, 2026 Between Kenya Union Of Water And Sewerage Employees Petitioner and The Hon Attorney General 1st Respondent Registrar Of Trade Unions 2nd Respondent and The Proposed Water Services Workers Union (Waswu) 1st Interested Party Patrick Kasimu 2nd Interested Party Charles Makini 3rd Interested Party Faith Wangari Kimemia 4th Interested Party Sebastian Mongare Nyabera 5th Interested Party Victor Onyango Ongol 6th Interested Party Francis Muiyo Kaia 7th Interested Party Grace Njoroge 8th Interested Party Nairobi City Water and Sewerage Company Limited 9th Interested Party National Labor Board 10th Interested Party Ruling 1.Before the Court for determination is the Applicant’s Notice of Motion dated 14th April 2026 filed under Certificate of Urgency seeking orders that:-1.Spent2.Spent3.Spent4.Spent5.Spent6.Pending the hearing and determination of the Petition the Court be pleased to issue an order restraining the 1st Interested Party, it officials, agents, employees and or representative from engaging in any activity as a registered trade union in the water sector.7.The Honourale Court be pleased to issue an Order staying the 1st Interested Party operations and Operationalising of the Recognition Agreement purportedly signed between it and Nairobi City Water and Sewerage Company Limited and any other water companies across the country and further engaging in the water sector in any manner what so ever. Whatsoever.8.The Honourable Court be pleased to issue further order staying any proceedings and any other litigation in the name of the 1st Interested Party until the Petition is heard and determined hopefully in its favour for lack of legal capacity.9.Costs of this application and suit be met by the Respondents. 2.The motion is expressed under Article 36 and 41 of the Constitution of Kenya, section 31, 33, 34 and 35 of the Labour Relations Act and Section 3 and 12 of the Employment and Labour Relations Court Act and based on the grounds set out on its face and Supporting Affidavit sworn by Elijah Otieno Awach on 14th April 2026 who deposes that he is the General Secretary of the applicant union. 3.The affiant deposes that on 21st May 2025, the court restrained the applicant from proceeding with the petition and any other litigation in its name until Appeal No. E129 of 2025 was heard and determined but the applicant union was reinstated on 16th March 2026 and the order was served upon the Registrar of Trade Unions and the Registrar restored the union on the Register of Trade Unions, which accorded the applicant capacity to sue or be sued and wished to proceed with the instant petition. 4.The affiant further deposes that the foregoing notwithstanding, water companies, where the applicant had Recognition Agreements and running CBAs had scheduled negotiations for a CBA on diverse days in April and May 2026 based on an illegal Recognition Agreement between the 1st and 9th Interested parties during the pendency of the suit and thus had no authority to recruit members, sign a Recognition Agreement or negotiate a CBA and the same had been overtaken by events when the applicant was restored on the register. 5.The affiant deposes that as of the date of deregistration of the applicant it had a membership of 1077 who did not shift to any other union and no member had resigned and/or stopped the 9th Interested Party from deducting union dues and remitting the same to the union. 6.That prior to the foregoing the 9th Interested Party and the applicant had exchanged CBA proposals and counter proposals and had scheduled negotiations and the 1st and 9th Interested parties were trying to evade the applicants restriction hence the need for judicial intervention. 7.That the 1st Interested Party had invaded areas such as Embu, Kakamega, Siaya and Kisumu and attempted to persuade the water companies to sign a recogination agreement and served a CBA proposal. 8.That the Recognition of the 1st Interested Party by the 9th Interested Party was contrary to the Labour Relations Act owing to the existence of another Recognition Agreement and the 9th Interested Party had petitioned the 10th Interested Party to revoke the Recognition Agreement hence the need to restrain the 10th Interested Party from acting on the request. 1st – 8th Interested Parties Grounds of Opposition 9.The 1st – 8th Interested Party contented that the application herein was frivolous, vexation, abuse of court process, incurably, and totally defective and was for dismissal on the premises that the petition filed on 3rd October 2023 by the Applicant was struck out by the Court vide ruling delivered on 9th December 2025 for lack of legal capacity to sue or be sued and the orders sought herein cannot be granted by dint of the ruling and the petition was not reinstated and the 1st Interested Party did not exist thus no order can issue against it and neither the Nairobi City Water and Sewerage Company Limited nor the 10th Interested Party were parties to the initial petition; and no application for joinder had been made prior. 10.That the 1st Interested Party was issued with a Certificate of Registration dated 23rd April 2025 and the appeal challenging its registration was dismissed. 1st Interested Party’s case 11.By a Replying Affidavit sworn on 26th May 2026 in Opposition to the application, Matilda Kimetto, the Secretary General of the 1st Interested Party deponed that the application was fatally defective, non starter and an abuse of court process. That the application touched on three suits namely Nairobi ELRC PET. NO. E188 of 2023 KUWASE V Attorney General & Others, KUWASE V Registrar of Trade Union & 3 Others and Nairobi ELRCCA NO. E 437 OF 2025 Kenya County Government Workers Union V Registrar of Trade Union & Another. The affiant deponed that while the 1st Interested Party was registered on 23rd April 2025, the Applicant was deregistered as a trade union on 2nd May 2025.The affiant explained the history of the suit and the orders made in each of the cases. 12.The affiant further deponed that the instant application ought to be struck out because the petition dated 3rd October 2023 was struck out on 21st May 2025 and vide ruling delivered on 9th December 2025 owing to the applicant’s to the applicants lack of capacity to sue or be sued and the orders sought could not be granted since they related to CBA negotiations not part of the petition and some of the parties against whom orders are sought were not parties to the petition. 9th Interested Party’s case 13.The Nairobi City Water & Sewerage Company Limited filed Grounds of Opposition contending that the application dated 14th April 2026 was fatally defective for want of form and substance and was for striking out in that vide a ruling delivered on 9th December 2025 which struck out the petition and it was not reinstated, the applicant had not filed an application for joinder of the 9th Interested Party and the 1st Interested Party was registered, thus putting the issue to rest, and a further appeal against the registration was dismissed by the court on 9th March 2026. Applicant’s Responses 14.Mr. Elijah Awach deponed that Principle of functus officio was unapplicable because the court had not discharged its duty and the order perfected. That the ruling of 9th December 2025 put the Petition in abeyance alongside JR E025 of 2025 and the appeal was resolved in favour of the applicant in March 2026. 15.That the applicant had a valid Recognition Agreement with the company dated 11th July 2016 and a CBA registered on 28th July 2023 and the interim order were lawfully granted upon full disclosure and the 2nd Interested Party was lawfully joined vide lawful order on 29th November 2024 on an application for joinder and an employer could only have one (1) union. 16.The affiant deponed that the Respondent and the Registrar of Trade Unions colluded to register a rival union in the same sector in violation of section 14(1) (d) of the Labour Relations Act and if the Interim Order was vacated, the rival union would execute a CBA which would create a chaotic situation occasioning irreparable damage to members. 17.That the 9th Interested Party was bound by the Recognition Agreement dated 11th July 2006 and a CBA and the 1st Interested Party did not have the requisite simple majority as required by section 54 of the Labour Relations Act and the 9th Interested Party could not negotiate with two (2) unions. Petitioner’s Submissions 18.As to whether the Interested Party had standing to apply for the striking out of the suit where the primary Respondent had voluntarily withdrawn the substantive appeal, Mr. Elijah Otieno Awach submitted that the Interested Party was bound by the Respondents compromise as its role was subsidiary to the main parties and thus could not litigate a dispute or seek a remedy that the primary Respondent had surrendered. 19.As to whether the Interested Party’s Grounds Opposition met the threshold for striking out of a suit, the applicant urged that since striking out a suit was a draconian remedy, caution had to be exercised and since the court ruled in favour of the appellant, the suit had an arguable cause of action and was not frivolous, vexatious or an abuse of court process. 20.Mr. Elijah Otieno Awach urged the Court to dismiss the Interested Party’s Grounds of Opposition with costs. Reliance was placed on the decisions in Communications Commission of Kenya & 5 Others V Royal Media Services & 5 Others, on the powers of an Interested Party as purely derivative and National Land Commission V Kenya Chemical Workers Union & 3 Others for the proposition that an Interested Party could not introduce parallel and fresh vectors into the suit contrary to the position of the main parties but must take the case as they find it. 21.Further reliance was placed on the decision in D.T. Dobie & Co. (K) Limited V Joseph Mbaria & another (1980)eKLR on striking out of a suit and Trust Bank Limited V Amin Company Limited & another 2000 KLR 164 on abuse of court process Mr. Elijah Otieno Awach prayed that the application herein be allowed. 1st Interested Party’s Submissions 22.Counsel for the 1st Interested Party urged that the Court could not issue the orders sought based on pre-existing orders of courts in the subject matter on the premises that the court is functus officio placing reliance on the decisions in Telkom Kenya Ltd V John Ochanda (2014)eKLR , Jersy Evening Post Ltd V A I Tjari (2002), JLR and Raila Odinga & 2 Others V IEBC (2013)eKLR on functus officio to submit that on 21st May 2026 Abuodha J. delivered a ruling on the applicant’s capacity to sue or be sued, in its name and on 9th December 2025 the Court stated that the Petitioner did not exist as per the earlier ruling and vide ruling delivered on 16th Mach 2026 Abuodha J. the court granted a conditional reinstatement of the applicant to the Registrar or Trade Unions provided returns were delivered physically within 14 days of the order and no evidence of delivery of the returns had been provided to establish compliance and the orders made on 21st May 2025 and 9th December 2025 were still in force and the instant petition was never reinstated. 23.As to whether the instant application was merited counsel submitted that it lacked merit in that the petition had been overtaken by events because it was challenging issuance of the certificate of interim registration dated 11th May 2025 to the 1st Interested Party which had been overtaken by events as the union was registered on 23rd April 2025 during the pendency of the Petition and the appeal in ELRCCA/E437 OF 2025 against the registration was dismissed for want of merit on 9th March 2026. 24.On misjoinder of parties counsel submitted that the applicant had sought orders against parties not involved in the petition principally. The 9th and 10 Interested parties and no application for joinder was made to include them. Counsel further urged that the applicant was seeking orders against a proposed union, an non-existent entity since it was a registered trade union. 25.That the instant application did not relate to the subject matter of the petition since matters germane to the Collective Bargaining Agreement were not the subject matter of the petition dated 3rd October 2023.Counsel urged the court to disallow the application. 26.Its common ground that the Applicant herein filed a petition dated 3rd October 2023 against the Attorney General, Registrar of Trade Unions and the proposed Water Services Workers Union as Interested Party. Paragraphs 7 – 10 of the petition related to the proposed union, the Interested party and no other fact was alluded to. 27.Paragraph 4 of the Petition stated that the Interested party was joined on the basis that the certificate of interim registration dated 11th May 2025 the Registrar of Trade Unions certified the establishment of the Interested Party. Under paragraph 5 the Petitioner reiterated that was registered vide certificate of registration dated 30th March 2006 to champion the interest of employees offering water service. 28.The Petitioner prayed for seven(7) declaratory orders including prohibiting the 2nd Respondent from effecting any intended precipitate steps necessary for registration of the proposed union. 29.Other reliefs includedi.An order restraining the 2nd Respondent from registering any such parallel union in the near future.ii.An award of exemplary and aggravated, damages for the Respondents’ arbitrary, tortious oppressive and unconstitutional.iii.Any other relief the Honourable Court may deem fit to grantiv.Cost of suit and interest. 30.Contemporaneously, the Petitioner/Applicant filed a Notice of Motion of even date seeking conservatory orders all intended to ensure that the Interested Party was not registered as a trade union including quashing the certificate of interim registration dated 11th May 2025. The motion was not certified urgent. 31.Subsequently, the trial court dismissed a Preliminary Objection that the petition was premature fatally defective frivolous vexatious and an abuse of court process and any other to strike out the Interested Party from the suit. 32.By ruling delivered on 21st May 2025 Abuodha J. directed that he petition herein ELRC NO. E188 of 2025 and ELRC JC NO. E025 OF 2025 be held in abeyance pending the determination in ELRCCA NO. E129 OF 2025 challenging registration of the Interested party as a Trade Union vide certificate of registration dated 23rd April 2025. 33.By a ruling delivered on 25th July 2025 the Court found that the deregistration of the Petitioner by the NLB Registrar of Trade Unions was legally and defensible and the 1st and 2nd Respondents had acted within their powers. Similarly, ELRCCA E437 of 2025 dated 19th May 2025 challenging the registration of the 1st Interested Party was dismissed for want of merit. 34.It is not in dispute that vide ruling delivered on 16th March 2026 the Court directed that the applicant be restored to the Register of Trade Unions and further rescinded the decision of the Registrar to de-register the union and the reinstatement of the name took place as confirmed by the Registrar of Trade Unions letter dated 19th March 2025. 35.Its clear that after deregistration of applicant, the 1st Interested Party concluded a Recognition Agreement with the 9th Interested Party and subsequently commenced CBA negotiations, and as early as 14th October 2025 the 1st Interested Party had submitted a proposal to the 9th Interested Party and vide letter dated 2nd April 2026, the 9th Interest Party informed the National General Secretary of the 1st Interested Party that CBA negotiations would commence on 21st – 24th April 2026 and 4th – 8th May 2026 comprising capacity building and negotiations. This letter among other facts precipitated the instant application. 36.When the matter came up, the court directed service and a hearing on 27th April 2026 and despite service of the application none of the Respondents had responded or was present in court. The court granted pray No. 3 of the Notice of motion, halting the CBA negotiations and accorded the Respondents 14 days to respond with a mention on 21st May 2025 when other counsel were present and directions on compliance were issued with a hearing on 16th June 2026 when a ruling date was fixed. 37.According to the applicant since it had a Recognition Agreement with the 9th Interested party and it had not been revoked, in accord with the law, 9th Interested Party could not conclude a Recognition Agreement with another union or negotiate a CBA, the 1st Interested Party, however did so and was in the process of negotiating a CBA. 38.A crucial issue that arises is whether the applicants Petition dated 31st October 2023 could service it after it ceased to exist. By ruling delivered on 21st May 2025 Aboudha J. held:“The appellant in appeal E129 of 2025. That is to say the Petitioner herein (Pet 188) does not have the capacity to proceed with the Petition and any other litigation in it’s name until the appeal E129 of 2025 is heard and determined and hopefully resolved in its favour.” 39.Under section 21 of the Labour Relations Act, upon registration , a trade union becomes a legal person, a body corporate with perpetual succession capacity to sue or e sued in its name enter into contracts and hold, purchase, acquire or dispose of property. An unregistered trade union does not exist in law. 40.Under section 23 of the Labour Relations Act1.…2.…3.…4.No person shall act or purport to act as an officer or official of a trade union or employer’s organisation that is not registered or has had its registration cancelled. 41.Clearly since the applicant did not exist it had no capacity to do anything including represent its members, who were now free to join other unions of their choice including the 1st Interested Party. The applicant cannot favit the 1st Interest Party for filling the void created by the deregistration of the applicant and in any event there was no certainty as to whether and/or when the applicant would be reinstated on the Register of Trade Unions. 42.In the Court’s view, the 1st Interested Party and the 9th Interest Party cannot be faulted for the actions they took to formalise their relationship for the benefit of the 9th Interested Party’s employees. It is notable that the court had already affirmed that the deregistration of the applicant was legally sound and no longer a trade union capable of undertaking any action including represent its members who now had the option to search for another trade union in the sector. 43.The applicants letter dated 19th March 2026 to twenty four (24) Water Companies throughout the country notified them that it had been reinstated as a trade union and could now proceed with trade union activities and could not undo what had been done during its deregistration because, it did not exist as a trade union.This far, it is clear that the interim orders issued on 24th April 2026 are no longer sustainable. 44.As to whether the court is functus officio, parties have adopted opposing positions with the applicant maintaining that the court is not functus officio. 45.In determining this issue the court is guided by the sentiments of the Supreme Court of Kenya in Raila Odinga V I.E.B.C (supra) that:-A court is functus when it has performed all its duties in a particular case. The doctrine does not – prevent the Court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully conducted and the court functus when the judgment or order has been perfected. The purpose of the doctrine is to provide finality…”See also in this regard Telkom Kenya Ltd V Ochanda (suing on Behalf of 996 Former Employees of Telkom Kenya Ltd (supra) 46.The totality of the rulings and judgement on record leave no doubt that the court has pronounced itself on the issue of registration of 1st Interested Party as a union and it is res judicata. The court is however not persuaded that it is functus officio in this suit. 47.As regards the 9th and 10th Interested Parties against whom the applicant is seeking orders it is clear that they are not parties to the instant petition and the applicant has not made any attempt to enjoin them in the petition. It is common ground made that no claim had been against them in the Petition and no reliefs had been prayed for against them. 48.While it is understandable that the applicant commenced the petition before the 9th Interested Party and the 10th Interested Parties were actively captured in the factual matrix of the Petition, the applicant had sufficient time to lodge an application to enjoin them under Order 1 Rule 10 (2) of the Civil Procedure Rules. 49.See also JMK V MWM & another (2015) KECA 524 (KLR), Tana Gas Distributors Ltd V Said & Others (2014) EA 448 and Rose Wakanyi Karanja & 3 other V Geoffrey Chege Kirundi & another; Everton Coal Enterprises Ltd (Interested Party) 2020 KECA 616 (KLR) and King’ori V Chege & 3 Others (2002)eKLR 243. 50.As to whether the Court can issue the orders sought on the face of existing orders, counsel for the 1st Interested Party submitted that it could not as the court was functus officio and the findings in the rulings dated 21st May 2025 and 9th December 2025 that the applicant had not capacity to proceed with the petition and any other litigation in its name and the reiteration that the order of Consolidation of Cause No. E437 of 2025, Petition No. E188 OF 2023 and JR No. E 025 of 2025 issued on 22nd September 2025 could not stand because the Petitioner in Petition No. E188 of 2023 did not exist. The court directed that the cases be heard and determined separately. 51.There is no indication that the Court struck out the petition. It is also notable that by its ruling of 21st May 2025 the Court directed that Petition No. E188 of 2023 and JR. No. E025 of 2025 be held in abeyance pending the determination of appeal E129 of 2025. 52.The Judge further directed that the Petition and the JR No. E025 of 2025 be mentioned before Wasilwa J. on 28th May 2025 for further directions. By its ruling of 21st May 2025, the Court did not strike out the petition dated 3rd October 2023. 53.As to whether the Petition had been overtaken by events the applicant did not address the issue directly but counsel for the 1st Interested Party submitted that it had and the instant application ought to be struck out. 54Counsel urged that since the Petition was challenging the issuance of the Certificate of Interim registration of the 1st Interested Party dated 11th May 2023 and the alleged violations of the constitutional rights such as fair administrative action, fair labour practices, legitimate expectation, right to access information and fair hearing occurred in the same context and the reliefs sought were intended to remedy the alleged infringements of the constitution and other Acts of parliament such as the Labour Relations Act and the Fair Administrative Action Act. 55.It is not in contest that the Registrar of Trade Unions considered the 1st Interested Party’s application to be registered as a trade union and registered it and issued a Certificate of Registration TU/194 on 23rd April 2025 during the pendency of the petition and an appeal challenging the registration was dismissed for want of merit. 55.Flowing from the foregoing, the court f and is not persuaded that 1st Petition dated 3rd October 2026 has been overtaken by events in totality. 56.In conclusion, the Court is satisfied that the applicant’s Notice of Motion dated 14th April 2026 is without merit and it is accordingly dismissed with no order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH DAY OF JUNE, 2026.DR. JACOB GAKERIJUDGEOrderIn 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 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.