https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2102

Kenya Union of Water and Sewerage Employees v Nairobi City Water and Sewerage Company Ltd & 2 others (Judicial Review Application E048 of 2026) [2026] KEELRC 2102 (KLR) (22 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2102 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Application E048 of 2026 M Mbarũ, J July 22, 2026 Between Kenya Union of Water and Sewerage Employees Applicant and Nairobi City Water and Sewerage Company Limited Respondent and Patrick Kasimu 1st Interested Party Water Services Workers Union (WASWU) 2nd Interested Party Ruling 1.The Water Services Workers Union (WSWU) filed the application dated 23 June 2026 seeking joinder herein as an interested party. There is also an application by Patrick Kasimu seeking joinder herein as an interested party. 2.The WSWU is seeking orders that Patrick Kasimu be enjoined in these proceedings as an interested party. This will allow them to file responses, replying affidavits and witness statements. 3.For WSWU, the application is supported by the Supporting Affidavit of Matilda Kimetto, who averred that the Secretary General has authority to support the joinder application as an interested party. The application is on the grounds that WSWU is a registered trade union under the Labour Relations Act (LRA). This is the recognised trade union and collective bargaining agent representing the respondent's unionisable employees. 4.There exists a Recognition Agreement dated 16 September 2025 governing labour relations between the parties. Such is allowed under section 54 of the LRA upon the recruitment of a simple majority of unionisable employees of the respondent. Hence, WSWU is vested with an exclusive statutory mandate to represent employees and to bargain on terms and conditions of employment collectively. 5.Following the Recognition Agreement dated 16 September 2026, under section 54, 57 and 59 of the LRA, WSWU accrued enforceable rights to negotiate a CBA with the respondent. There are ongoing negotiations upon submission of a CBA proposal to the respondent on 14 October 2025. 6.Kimetto avers that the respondent submitted a counterproposal on 19 March 2026 and that negotiations are ongoing. Halting such negotiations is prejudicial to the WSWU members. 7.The issues addressed in these proceedings directly affect the WSWU’s statutory recognition, CBA negotiations and the rights of the unionisable employees that it represents. The outcome of these proceedings will therefore have a bearing on the WSWU mandate, and the WSWU stands to suffer substantial and irreparable loss and damage if it is not joined as an interested party to ventilate its case and interests. 8.Kimetto avers that the WSWU possesses material evidence and information which is relevant to the just determination of the dispute. There is evidence demonstrating that WSWU has recruited and represents a simple majority of the respondent’s unionisable employees. The execution, implementation and continued validity of the Recognition Agreement entered into pursuant to section 54 of the LRA is important to consider. The history and current status of ongoing CBA negotiations with the respondent should be addressed. The industrial relations framework governing relations between the WSWU and the respondent, and the rights of unionisable employees, will be affected unless addressed here. 9.Kimetto thus avers that the participation of WSWU in these proceedings is necessary to allow the placing of all the relevant factual, statutory, and industrial relations considerations necessary for a fair and complete determination of the dispute herein. The joinder of WSWU will not occasion any prejudice upon the applicant. To serve the interests of justice, the joinder of WSWU should be permitted under Article 41 of the Constitution, which guarantees the right to fair labour practices. 10.Similarly, Patrick Kasimu avers that he seeks joinder as an interested party herein as the treasurer of the WSWU, and there will be prejudice if the orders sought are not granted. He avers that he filed his application to protect the rights of the WSWU in these proceedings and there will be no prejudice to the applicant if he is enjoined as a party herein. 11.The respondent, Nairobi City Water & Sewerage Company Limited, did not file any response save to support the application for joinder of the proposed interested parties. 12.In reply, the applicant filed the Replying Affidavit of Elijah Awach, the general secretary, and averred that these are judicial review proceedings seeking orders of mandamus to compel the respondent to perform a specific statutory and legal duty. The applicant thus seeks to compel the respondent to address its statutory duty, not the merits of the case. 13.The intended interested parties' application is rooted in the Recognition Agreement dated 16 September 2025 and ongoing CBA negotiations. These are private contractual relations that do not alter or affect the public duty of the respondent as herein sought to be enforced. 14.Awach avers that the test for joinder as an interested party dictates that the party must have a direct stake that will be affected or possess unique information that will assist the court in resolving the legal dispute. The application by WSWU fails to bring to the court any matter that should challenge the proceedings herein, where the applicant seeks orders of mandamus against the respondent. 15.The outcome of these proceedings will only determine whether the respondent has failed to fulfil its administrative and statutory obligations and not to validate WSWU registration and recognition. The presence of the WSWU in these proceedings is therefore not necessary, and the reliefs sought will not have any impact save to muddy the waters and convert the dispute herein into a protracted recognition question. The joinder sought should be declined. 16.Awach also avers, in response to Patrick Kasimu's application for joinder, that, as the treasurer of WSWU, he is already represented in these proceedings by his union. The need for joinder is merely a demonstration of the multiplicity of applicants to stall the proceedings herein and should be dismissed. 17.The applicant also filed Grounds of Opposition that the intended interested parties lack proper standing before the court as these are judicial review proceedings. The intended IP has relied on the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, which govern constitutional petitions rather than judicial review applications. Thus, the application is fatally defective and should be dismissed. 18.The applicant further asserts that no board resolution is attached to confirm WSWU's authority to file the application, rendering the application incompetent. 19.The application is a collateral attack to re-litigate and bypass court orders issued on 22 June 2026 20.confirming compliance with orders issued on 16 March 2026, which formalised the Consent Decree that restrained the applicant union; hence, the dispute is res judicata, and the matter is fully settled. 21.The applicant also asserts that events have overtaken WSWU's application and that it lacks legal foundation following a ruling delivered on 30 June 2026 in ELRC Petition E188 of 2023, which dismissed the Grounds of Opposition raised therein. Hence, these proceedings are meant as forum shopping and concealment of facts. 22.Parties attended and made oral submissions. These are considered in the analysis here. Determination 23.The applicant filed an application dated 7 May 2026 seeking an order of mandamus to compel the respondent, Nairobi City Water and Sewerage Company Limited, to engage it in negotiations of a CBA for the period July 2023/June 2025. The basis of this application is that the applicant enjoys recognition by the respondent and hence, on 14 March 2024, the applicant served the respondent with a proposal for a new CBA in terms of the LRA. The respondent acknowledged receipt, and there have been ongoing communications thereafter. 24.However, on 21 March 2025, the applicant learned that the employees and their members had been invited, via an internal memo, to attend the CBA negotiations from 24 to 28 March 2025, without the applicant's knowledge.The matter has not been resolved, hence these proceedings. 25.In its submissions, the respondent asserted that it is not opposed to the application for the joinder of WSWU and has since written to the applicant requesting revocation of the Recognition Agreement. The respondent also admitted that there are ongoing CBA negotiations with the WSWU pending conclusion. 26.It is also admitted that Patrick Kasimu is well represented by his union, WSWU, which is its treasurer.Is WSWU then a necessary party herein as an interested party? 27.In the Grounds of Opposition, the applicant has attached the ruling delivered on 25 June 2026. It relates to Nairobi ELRC Petition E188 of 2023. The subject of the ruling was the applicant's application dated 14 April 2026. 28.The ruling relates to the application by the applicant herein, Kenya Union of Water and Sewerage Employees, against the Attorney General and the Registrar of Trade Unions, and several interested parties, including WSWU as the 1st interested party and Patrick Kasimu as the 2nd interested party. 29.The applicant sought orders restraining the WSWU, the 1st IP, from engaging in any activity as a registered trade union in the water sector. It also sought orders staying the WSWU operations and the operation of the Recognition Agreement signed with the respondent, Nairobi City Water and Sewerage Company Limited, and any other water companies across the country or engaging in the water sector in any manner. 30.The court, My Brother Hon. Justice (Dr.) Jacob Gakeri considered the application and held that the Registrar of Trade Unions had considered the application for the registration of WSWU, and that a Certificate of Registration was issued on 23 April 2025, during the pendency of the petition and an appeal challenging the registration, which was dismissed for want of merit. 31.Ultimately, the application dated 14 April 2026 was dismissed for lack of merit. 32.Going back to the question of joinder of the proposed interested party, there exist two Recognition Agreements, both issued by the respondent: one to the applicant, based on the challenged refusal to negotiate a CBA and the other on which the WSWU is relying to seek joinder herein. Whereas the sanctity of a CBA and Recognition Agreement is addressed under the LRA, the facts addressed in the Nairobi ELRC Petition E188 of 2025 go into it; it will be necessary to have the WSWU as a party herein for a complete appreciation of the dispute. 33.However, as directed on 8 July 2026, parties shall maintain the status quo as of such date to allow the court a fair chance to hear the matter herein.The joinder of Patrick Kasimu, treasurer, WSWU, is unnecessary. 34.Accordingly, the application dated 23 June 2026 is allowed with the joinder of Water Services Workers Union (WSWU) as an interested party herein. Save that, the parties shall maintain the status quo as at 8 July 2026, and the respondent shall not sign any CBA for the benefit of the interested party. DELIVERED IN OPEN COURT THIS 22ND DAY OF JULY 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Kemboi…………………………… and ……………………………