Kenya County Government Workers Union Nyeri (Nyewasco Branch) v Nyeri Water & Sanitation Company Ltd (Employment and Labour Relations Cause E037 of 2023) [2025] KEELRC 440 (KLR)
The bottom line
#Kenya's Employment Court struck out a union branch's case because the branch couldn't sue and skipped required conciliation first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit was prematurely filed before exhausting the alternative process prescribed by clause 52 of the CBA and section 62(1) of the LRA.
- 2.Whether the claimant lacks the locus standi to bring this suit.
Key legal issues
#Whether the suit was prematurely filed before exhausting conciliation under clause 52 of the CBA and section 62 of the LRA
The suit was premature and fatally incompetent; the dispute did not fall within the urgent categories under section 74 of the LRA permitting direct referral to the Court.
The court held that Rule 5(3) of the ELRC Procedure Rules, which allows a claimant to explain why conciliation has not taken place, is not a carte blanche but applies only to disputes of extreme urgency within section 74 of the LRA (recognition disputes and redundancy). The pension contribution dispute did not fall within those categories, so the claimant was required to invoke the conciliation process under clause 52 of the CBA and section 62 of the LRA before approaching the Court.
Whether the claimant has locus standi to file the suit
The claimant, a branch of a trade union, lacks legal capacity to sue, and the suit was not initiated by an authorized representative as defined under section 2 of the LRA.
Section 25 of the LRA, under which branches are registered, does not confer corporate status on a branch; only the trade union acquires such status upon registration under section 21. Further, section 73(3) of the LRA confines referral of trade disputes to the authorized representative defined in section 2, and the person who signed the affidavits was not the General Secretary of the Kenya County Government Workers Union.
Legal principles established
#- Failure to follow the alternative dispute resolution procedure in the CBA and the LRA renders a suit premature and fatally incompetent for violating the exhaustion doctrine; the doctrine postpones rather than extinguishes the Court's jurisdiction.
- A branch of a trade union is not a body corporate with capacity to sue or be sued; only the trade union acquires such status upon registration.
- A trade dispute may only be referred to the Industrial Court by an authorized representative as defined under section 2 of the LRA.
Court orders
#- 1.Struck out the entire suit with no costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (ELRC jurisdiction); dispute resolution under section 62 of the Labour Relations Act and clause 52 of the CBA
Relief refused
#Permanent injunction restraining implementation of the notice dated 11th December 2023
The suit was struck out for prematurity and lack of locus standi
Declaration that the CBA is superior to Treasury Circular No. 18
Suit struck out before determination on the merits
Declaration that deductions based on Treasury Circular No. 18 are unlawful
Suit struck out before determination on the merits
Declaration that the Respondent's memo dated 11th December 2023 is discriminatory
Suit struck out before determination on the merits
Costs of the suit
No costs awarded as there is no legal person capable of paying
Costs
Suit struck out with no costs, since there is no legal person capable of being pursued to pay the same.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Failure to follow the alternative procedure provided in the CBA and the Statute rendered the suit premature, and fatally incompetent for violating the exhaustion doctrine. The said doctrine does not per se extinguish the jurisdiction of the Court but rather postpones it to a future date when the dispute becomes ripe for adjudication before the Court.
However, the above option was not a carte blanche but only availed to very limited scope of disputes with extreme urgency.
section 25 of the LRA under which branches of a trade union are registered does not confer upon a branch of a trade union the status of a body corporate with capacity to sue or be sued.
For the reason that the claimant lacks the legal capacity to sue and that the suit is not initiated by the authorized representative of the relevant trade union, I find and hold that the claimant lacks the Locus standi before this suit.
Consequently, I find merits in the preliminary objection by the respondent and proceed to strike out the entire suit with no costs since there is no legal person capable of being pursued to pay the same.
Issues in the judgment
#The Statement of Response is described as dated 22nd May 2023, yet the claim challenges a memo dated 11th December 2023, an apparent internal chronological inconsistency.
The CBA is described as effective from 1st July 2021 to 30th June 2024, but the claimant also refers to employees 'employed in June 2023 and confirmed in December 2023' relative to the same subsisting CBA; the dates are not reconciled in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya County Government Workers Union Nyeri (Nyewasco Branch) v Nyeri Water & Sanitation Company Ltd (Employment and Labour Relations Cause E037 of 2023) [2025] KEELRC 440 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/440/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.