REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CBA NO: 34 OF 2020

IN THE MATTER OF REGISTRATION OF COLLECTIVE BARGAINING AGREEMENT

BETWEEN

KENYA COUNTY GOVERNMENT WORKERS UNION……………………………………………………………...UNION

-AND

NAIROBI CITY WATER AND SEWERAGE COMPANY LIMITED……………………………..……………..EMPLOYER

NATIONAL UNION OF WATER AND SEWERAGE EMPLOYEES (now KENYA UNION OF WATER AND
SEWERAGE EMPLOYEES) ………………………………………………………..……………………………………..…. OBJECTOR

REPLYING AFFIDAVIT
I ELIJAH OTIENO AWACH of P.O BOX 24 - 00515 NAIROBI in the Republic of Kenya do
hereby make oath and state as follows: -
1. THAT I am the Objectors General secretary herein and therefore competent to
swear this affidavit. Copy of the Extract of officials as at 2nd December
2024 is marked as EOA1.
2. THAT I have read and understood the Affidavit of ROBA SHARU DUBA sworn on
21st May 2024 and wish to respond as hereunder:
3. THAT the contents of paragraph 2 of the replying affidavit sworn 0n 21st May
2024 are true to the extent that the Court delivered its ruling on 15th January 2021
declining to register the unions Collective Bargaining Agreement number 34 of
2020 on the grounds that it was negotiated without capacity and in violation of
the unchallenged decisions of this Honorable court in cause Number 439 of 2010
and CA Number 213 of 2010 as confirmed by the court of appeal in Civil Appeal
No. 18 of 2013. Copy of the Judgment in Civil Appeal No. 18 of 2013 is
marked as EOA2.
4. THAT it is now open that even after the delivery of this court’s ruling on 15th
January 2021, the applicant union still obstructed and sneaked into this Honorable
court several collective Bargaining Agreements processed and registered in
violations of this court’s ruling dated 15th January 2021 taking advantage of their
 successful registration without objections and are now trying to further arm-twist
this Honorable court to involve in illegalities over its own determinations to set
aside the court of Appeals Judgment in Civil Appeal number 18 of 2013 which this
court has no jurisdiction at all to allow the applicant union to continue to be in
open defiance of this courts orders as demonstrated by the applicant at its
paragraph 3 of the affidavit sworn on 21st May 2024 .
5. THAT further to the above , it is evident that the applicant has shown open
defiance of this courts orders thereby sneaking collective Bargaining Agreements
between it and several water companies which companies have valid recognition
agreement with the Objector herein with Kirinyaga water and Sanitation
company limited, CBA processed and Registered on 10th March 2021 in a span
of two months after the delivery of this court’s ruling on 15th January 2021, the
same year on 16th December 2021, the applicant union went ahead and registered
a collective Bargaining Agreement with Nanyuki water and sanitation company
limited, Kericho ,Nyeri and Nakuru on 10th November 2021 and 23rd November
2021 respectively having the knowledge that the Objector and aforementioned
companies had valid Recognition Agreements. True samples of the
recognition Agreements which have not been revoked by the National
Labor Board are marked as EOA3.
6. THAT the contents of paragraph 4 of the applicant unions affidavit sworn on 21st
May 2024 are contemptuous in nature considering the fact that there are several
decisions of this court and that of the court of appeal baring the applicant from
holding itself as representing the employees in the water and sanitation sector and
further ordered the applicant to delete the word councils water companies from its
constitution which permeates it to interfere with the Objectors union operations.
The same was upheld in Civil Appeal No. 18 of 2013.
7. THAT the contents of paragraph 5 of the applicants affidavit sworn on 21st May
2024 are contemptuous in nature in the sense that after several determinations of
this honorable court as confirmed by the court of appeal in civil Appeal number 18
of 2013 that, the applicant does not have the capacity to hold itself as representing
the employees in the water and sanitation sector, the applicant confirms to this
 court of its blatant disregard of this courts orders and want the court to sit on its
own appeal hence resjudicator.
8. THAT the contents of paragraph 6 and 7 of the affidavit sworn on 21st May 2024
are a mere ploy to this Honorable court to review the decision of the court of Appeal
which jurisdiction this court does not have and cannot reverse at all for the reasons
that there is no recognition Agreement which exists between the employer and the
applicant Union to warrant issuance of such orders as the same was declared null
and void in cause number 439 of 2010 and civil Appeal Number 213 of 2010.
9. THAT further to the above, this court made a determination on 15th January 2021
at page 27 that the fact that an employee has a right to join a union of his choice
does not mean that he can join a union whose membership clause does not cover
the sector in which he works. The court went further to clarify that the constitution
does not state that it can be any trade union but a trade union meaning that it must
be a relevant trade union
10. THAT the contents of paragraphs 8 and 9 of the affidavit sworn on 21st May 2024
are denied as well, as the applicant is openly aiding illegality by recruiting the
objectors members when this court and the court of Appeal made determinations
that it does not have capacity to hold itself as representing the employees in the
water sector and further Ordered it to delete the wordings water from its
membership clause which permits it to hold itself as representing itself as an agent
of the employees in the water companies and the objector shall at the Hearing of
this application raise a notice to produce by the Registrar of trade unions a
registered constitution to ascertain whether it actually deleted the phrase Water
from its constitution.
11. THAT the contents of paragraphs 10 and 11 of the affidavit sworn on 21st May 2024
are not true to the extent that the ruling delivered on 15th January 2021 just
confirmed the decision of the court of appeal in civil Appeal number 18 of 2013
that quashed the Recognition Agreement between the applicant and the employer
together with CBA negotiate and finally rejected the collective Bargaining
Agreement which was the subject of the Objectors application dated 24th February
2020 which this court allowed.
12. THAT Further to the above, any action and or inaction between the applicant
union and any water company after the Judgment of the court of appeal delivered
on 16th February 2018 were illegalities as any registration of the CBA done by this
court were done without disclosure of material facts by the union rendering this
court to sit on its own Appeal and contrary to the determination by the court of
appeal which decision has never been challenged or appealed against.
13. THAT the contents of paragraph 12 of the affidavit sworn by ROBA SHARU
DUBA on 21st May 2024 are not true to the extent that the applicant has not
supported its statement by any evidence.
14. THAT the contents of paragraph 13 of the affidavit of Roba Duba sworn on 21st
May 2024 are not true as the deponent has deponing on a yet to be decided decision
by the National Labor Board.
15. THAT the contents of paragraph 14 of the Affidavit sworn by Roba Duba are not
true to the extent that the employees of the Employer herein are fully represented
by the Objector and there is a duly registered Collective Bargaining Agreement
being RCA NO. 207 of 2022. Copy is annexed as EOA4.
16. THAT the contents of paragraphs 15,16 and 17 of the applicant’s affidavit sworn
on 21st May 2024 are denied to the extent that the court’s decision of 15th January
2021 created confusion as the applicant has not substantiated its assertion or
supported it by any document, further to the above, the earlier decisions in cause
number 439 of 2010 and C.A No. 213 earlier decisions were upheld by the court
of appeal in Civil Appeal No. 18 of 2013 therefore the applicant has been in
contempt of court and has taken this court or a ride hence no new development as
alleged .
17. THAT the contents of paragraphs 18 and 19 of the affidavit sworn on 21st May
2024 are not true to the extent that the decisions by this court in baring the
applicant from holding itself as representing the employees in the water sector and
Ordering it to delete the phrase water from its membership clause were made in
cause number 439 of 2010 and Civil appeal No. 210 of 2010 which were upheld
by the court of Appeal in Civil Appeal number 18 of 2013 , the applicant filed
a notice of Appeal and served the same thereafter filed a stay application dated21st
 January 2021 which was later dismissed vide a second ruling dated 13th August
2021.Copy of the ruling dated 13th August 2021 is marked as EOA 5.
18. THAT the contents of paragraph 20 of the affidavit sworn by the applicant on 21st
May 2024 are not relevant to the extent that its appeal abated as it pursued stay of
execution therefore this instant review is overtaken by events as it offends rule 74
of this courts rules 2024 which requires review to be filed within reasonable time
hence this application is time bared.
19. THAT the contents of paragraphs 21,22 and 23 of the affidavit sworn on 21st May
2024 are denied to the extent that the applicant does not rely on water sector dues
only as every trade union has its membership clause in the relevant sector which it
represents other than water sector , therefore the excuse by the applicant is flimsy
as the deponent cannot purport to have taken over four years and thereafter
approach the court for review on flimsy grounds and in any event the court
entertain such , then it would advertently interfere with its own rules more so rule
74 of this courts rules 2024.
20. Further to the above, the applicant ought to challenge the decision of the court of
appeal than challenging it in this court which lacks jurisdiction to alter or supervise
the superior court’s decision.
21. THAT in response to paragraphs 24 and 25 of the affidavits sworn by the applicant
union on 21st May 2024, there is no sufficient reasons adduced to warrant grant of
the prayers sought as the decision rendered by this court is that it declined to
register the collective Bargaining Agreement by the applicant union on the basis of
the decision of the court of appeal in civil Appeal no. 18 of 2013.
22. Paragraph 26 is controverted as the objector stands to suffer irreparable loss
which cannot be remedied by way of compensation as well as its peaceful
enjoyment in the water sector should the court grants the prayer sought.
23. THAT the applicant’s application dated 21st May 2024 frivolous, vexatious, bad
in law, incompetent, lacks meri and the same should be dismissed with cost
24. THAT I swear this affidavit to oppose the Application dated 21st May 2024

25. THAT what is deponed hereinabove is the true to the best of my knowledge,
information and belief.
 Sworn by the said )
ELIJAH OTIENO AWACH ) ………………………
at Nairobi this 6th day of December 2024 )
BEFORE ME )
)
)
COMMISSIONER FOR OATHS

DRAWN AND FILED BY

Kenya Union of Water and Sewerage Employees
(formerly National union of water and sewerage Employees)
5TH FLOOR, RELI CO-OP HOUSE, ROOM 506
HAKATI ROAD,
P.O BOX 24-00515,
[email protected]

TO BE SERVED UPON
Mathenge Mwiti Advocates
Madona House,2nd Floor, Suit no. 206
Wetlands Road, Off Mpaka road
P.O BOX 2676- 00100
NAIROBI
Email, [email protected]
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ELIJAH OTIENO AWACH

7TH
DECEMBER 2024 NAIROBI
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ELIJAH OTIENO AWACH
7TH
DECEMBER 2024 NAIROBI
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ELIJAH OTIENO AWACH
7TH
DECEMBER 2024 NAIROBI
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ELIJAH OTIENO AWACH

7TH
DECEMBER 2024 NAIROBI
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ELIJAH OTIENO AWACH
7TH
DECEMBER 2024 NAIROBI