[2023] KEELRC 2145 (KLR)
The court found that the applicant/interested party failed to demonstrate locus standi or capacity to bring the application dated February 22, 2023, as required by the Labour Relations Act. The evidence presented by the claimant, including the register of trade union officials and correspondence from the Registrar...
Source-derived case information.
- Citation
- [2023] KEELRC 2145 (KLR)
- Parties
- Applicant: National Union For Water And Sewerage Employees Union; Respondent: Garissa Water And Sewerage Company Ltd; Respondent: First Community Bank Garissa Branch; Respondent: Commercial Bank Of Kenya Garissa Branch
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1162 of 2018
- Procedural Posture
- Garnishee Application / Ruling on Preliminary Objection and Amended Notice of Motion
- Outcome
- preliminary objection allowed; application struck out; execution to proceed if garnishee holds funds
- Judges
- NJ Abuodha
- Legal Topics
- Trade Union Official Capacity, Locus Standi, Garnishee Orders, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
National Union For Water And Sewerage Employees Union
Applicant
Garissa Water And Sewerage Company Ltd
Respondent
First Community Bank Garissa Branch
Respondent
Commercial Bank Of Kenya Garissa Branch
Respondent
Procedural Posture
Garnishee Application / Ruling on Preliminary Objection and Amended Notice of Motion
Legal Issues
- 1 Whether the applicant/interested party had locus standi to bring the application dated February 22, 2023.
- 2 Whether the deponent to the affidavit had capacity to swear as General Secretary of the claimant.
- 3 Whether the application dated February 22, 2023 was competent before the court.
Ratio Decidendi
The court found that the applicant/interested party failed to demonstrate locus standi or capacity to bring the application dated February 22, 2023, as required by the Labour Relations Act. The evidence presented by the claimant, including the register of trade union officials and correspondence from the Registrar of Trade Unions, was not rebutted. The law requires that only registered officials may act on behalf of a trade union, and the applicant did not meet this threshold. Consequently, the preliminary objection was merited, and the application was struck out as incompetent. Regarding the amended Notice of Motion seeking reinstatement of the garnishee order nisi, the court noted that...
Court Disposition
preliminary objection allowed; application struck out; execution to proceed if garnishee holds funds
Orders
- The preliminary objection dated February 27, 2023 is allowed.
- The application dated February 22, 2023 is struck out with costs.
Full Case Text
Judgment text and source record
27 paragraphs
National Union for Water and Sewerage Employees Union v Garissa Water and Sewerage Company Ltd; First Community Bank Garissa Branch & another (Garnishee) (Cause 1162 of 2018) [2023] KEELRC 2145 (KLR) (22 September 2023) (Ruling)
Neutral citation: [2023] KEELRC 2145 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 1162 of 2018
NJ Abuodha, J
September 22, 2023
Between
National Union For Water And Sewerage Employees Union
Claimant
and
Garissa Water And Sewerage Company Ltd
Respondent
and
First Community Bank Garissa Branch
Garnishee
Commercial Bank Of Kenya Garissa Branch
Garnishee
Ruling
1. The claimant herein raised a preliminary objection dated February 27, 2023 in which it stated in the main that National Union for Water and Sewerage (NUWASE) Garissa Branch did not have locus standi to bring the application dated February 22, 2023 and further that the deponent to the affidavit to the application lacked the capacity to swear the affidavit as General Secretary of the claimant as he was not the registered Secretary of the claimant. The claimant relied on sections 2(a) and (e) of the Labour Relations Act read together with section 35(5) of the same.
2. On April 17, 2023, the court directed that the claimant serves the interested party with the preliminary objection alongside its submissions over the same. The interested party was to in return respond within 14 days of service. The court at the same time granted the claimant leave to file and serve an amended Notice of Motion and further affidavit within fourteen as well with similar corresponding leave to the respondent to respond to the same.
3. The court has perused the record and has not found any submissions or responses to the amended Notice of Motion dated May 2, 2023 from either the interested party or Garnishee. It may not be clear whether the same was served on them but the court shall revert to this later on in this ruling.
4. The claimant in response to the application dated February 22, 2023 produced as exhibit “EOA1”, an extract from the Register of Trade Unions showing its registered officers, committee members and trustees as at May 26, 2022. The claimant further attached a letter dated March 18, 2020 from the Registrar of Trade Unions informing the claimants of the registration of changes to the Union’s constitution including change of name from National Union for Water and Sewerage Employees Union to Kenya Union of Water and Sewerage Employees. Nothing on record shows the applicant/interested party rebutted these allegations.
5. Section 35(6) of the Labour Relations Act provides that:“no person who is not registered by the Registrar in accordance with this section shall act or purport to act as an official of a trade union, employers organisation or federation or any branch.”Section 2(a) further provides that authorised representative means the general secretary of the trade union or any person appointed in writing by an authorised representative to perform the functions of the authorised representative. The applicant in the application dated February 22, 2023 has not demonstrated that it meets these threshold set by law. The preliminary objection is therefore found merited and is allowed with the consequence that the application dated February 22, 2023 is hereby found incompetent and is hereby struck out with costs.
6. Concerning the amended Notice of Motion dated May 2, 2023, the claimant/decree holder is seeking reinstatement of the garnishee order nisi order issued on August 20, 2020. This court (Mbaru J) however by its ruling delivered on December 1, 2020 made the same absolute and hence the funds held by the garnishee ought to have been subject to execution to the extent and in satisfaction of the decretal sum. The matter therefore as stands now is an issue for execution against the garnishee if they should be holding any funds on behalf of the judgment debtor in defiance of the garnishee order.
7. It is so ordered
DATED AT NAIROBI THIS 22ND DAY OF SEPTEMBER, 2023ABUODHA J.NJUDGEDELIVERED VIRTUALLY THIS 22ND DAY OF SEPTEMBER, 2023