1. This ruling relates to two Motion applications, the first is the Claimant’s Notice of Motion application dated 14th January, 2026, and the second Motion was filed by the 1st Respondent/Applicant herein dated 20th January, 2026. The application of 14th January, 2026, is brought pursuant to Articles 19,20,21, 22, and 23 of the Constitution of Kenya, 2010, Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Order 1 Rule 10(2), and Order 51 Rule 1 of the Civil Procedure Rules. Under this application, the Claimant/Applicant seeks the following reliefs: -
i. Spent
ii. Spent
iii. Spent
iv. Spent
v. Spent
vi. THAT this Honourable Court be pleased to issue a Conservatory Order staying the implementation, execution, and/or any action pursuant to the 1st Respondent’s letter referenced COGWU (K)/2/NDC/2025 dated 1st November 2025, to the extent that the said letter relates to, affects, and/or applies to the employees of all Water and Sewerage Companies, notifying branches on the conduct of the Quinquennial Branch and National Elections, 2026 scheduled for Saturday, 17th January 2026, pending the hearing and determination of the claim filed herewith.
vii. THAT this Honourable Court be pleased to issue a Conservatory Order restraining the 1st Respondent, whether by itself, its authorized agents, servants, representatives and/or officers, from proceeding with, conducting, or taking any steps whatsoever in furtherance of the Quinquennial Branch and National Elections,2026, scheduled for Saturday, 17th January 2026, as set out in the letter referenced COGWU (K)/2/NDC/2025 dated 1st November 2025, to the extent that these elections relate to, affect and/or apply to the employees of all Water and Sewerage Companies, pending the hearing and determination of the claim filed herewith.
viii. THAT this Honourable Court be pleased to issue a Conservatory Order restraining the 2nd Respondent from conducting, overseeing, supervising, recognizing and/or registering or in any manner giving effect to the electoral process and/or results arising from the purported elections by the 1st Respondent scheduled for Saturday, 17th January 2026, to the extent that these elections relate to, affect and/or apply to the employees of all Water and Sewerage Companies, as set out in the letter referenced COGWU (K)/2/NDC/2025 dated 1st November 2025, pending the hearing and determination of the claim filed herewith.
ix. THAT this Honourable Court be pleased to issue an order staying any purported exercise of mandate, jurisdiction, or objects by the 1st Respondent over employees of Water and Sewerage Companies as provided for, derived from, and/or referenced under Article 6 of the 1st Respondent’s Constitution, pending the hearing and determination of the claim filed herewith.
x. The costs of and incidental to this Application be provided for.
2. The Claimant’s application is supported by the grounds on the face of the Motion and the supporting affidavit of Matilda Kimetto, sworn on 14th January, 2026.
3. The Claimant avers that on 1st November 2025, the 1st Respondent issued a circular to all union branches outlining the rules for the forthcoming quinquennial branch and national elections, following a Central Administration Board meeting held on 31st October 2025. It avers further that the Board resolved that all branch elections would be conducted on 17th January 2026 at designated venues in accordance with the union constitution.
4. The Claimant/Applicant states that it had earlier lodged complaints with the Registrar of Trade Unions, by a letter dated 7th July 2025, challenging the registration of amendments to the 1st Respondent's constitution, alleging non-disclosure of material court decisions and non-compliance with the union constitution.
5. It is the Claimant’s case that on 9th October 2025, it filed a further petition protesting the Registrar's registration actions, contending that the 1st Respondent's constitutional amendments and structures were inconsistent with binding court decisions, promoted industrial disharmony, and violated the principles of fair administrative action.
6. The Claimant/Applicant contends that the 1st Respondent acted unlawfully by issuing the election circular dated 1st November 2025 concerning the water sector, despite lacking recognition, mandate, and legal authority to organize, supervise, or issue election directives for employees in that sector. The Applicant further argues that the 1st Respondent has improperly retained water and sewerage companies within the scope of its constitution under Article 6, contrary to binding and unchallenged court decisions.
7. The Applicant relies on the decision in Kenya County Government Workers Union v Nairobi Water & Sewerage Company Ltd & 2 others (CBA 34 of 2020) [2025] KEELRC 1546 (KLR), in which the Court dismissed the 1st Respondent's application seeking recognition and authority to recruit members and negotiate collective bargaining agreements in the water services sector.
8. The Claimant/Applicant further notes that the Court, reaffirming an earlier ruling delivered on 15th January 2021 by Justice Maureen Onyango, holding that the 1st Respondent had no right to represent employees in the water services sector and was required to remove water and sewerage companies from the scope of its constitution.
9. The Claimant/Applicant further asserts that the 1st Respondent was fully aware of the binding decision of the Court of Appeal, which held that it had no mandate to represent employees in the water sector and affirmed that the appropriate union for the sector was the National Union of Water & Sewerage Employees (NUWASE), now the Kenya Union of Water and Sewerage Employees (KUWASE). The Applicant further relies on the decision in Kenya County Government Workers Union v Nairobi Water & Sewerage Co. Ltd, National Union of Water & Sewerage Employees (Interested Party) (Cause E747 of 2021) [2022] KEELRC 1122 (KLR), where Justice Nzioki wa Makau held that the recognition agreement between the 1st Respondent and Nairobi Water and Sewerage Company Limited was contrary to binding court decisions, null and void, and that the 1st Respondent lacked locus standi to represent employees in the water sector.
10. The Applicant further states that it was registered as the Water Services Workers Union (WASWU) by the Registrar of Trade Unions on 23rd April 2025, following which KUWASE was deregistered on 2nd May 2025. It avers that KUWASE's subsequent appeal challenging its deregistration was dismissed by Justice Abuodha on 25th July 2025, thereby upholding the Registrar's decision and affirming WASWU as the duly recognized trade union representing employees in the water services sector.
11. The Claimant/Applicant contends that although the 1st Respondent's Constitution designates it as the successor to KCGWU and includes water and sewerage employees within its membership, binding court decisions have consistently held that it has no mandate to represent employees in the water sector. It further averred that, despite these decisions, the 1st Respondent continues to assert jurisdiction over the sector by issuing election directives, which the Applicant argues are unlawful, likely to cause confusion and industrial unrest, and to interfere with its lawful mandate as the duly registered union.
12. The Applicant, therefore, seeks urgent court intervention to suspend the impugned directives and prevent irreparable harm.
13. The 1st Respondent opposed this application vide a Replying affidavit sworn by Roba Sharu Duba, on 18th March, 2026. The 1st Respondent argues that the application as frivolous, misconceived, and an abuse of the court process, on the basis that the Claimant has not met the threshold for the grant of conservatory orders. It contends that the Claimant/Applicant has misconstrued previous court decisions in asserting that the 1st Respondent lacks the mandate to represent employees in the water sector.
14. The 1st Respondent maintains that the decisions relied upon by the Applicant, including ELRC CBA No. 34 of 2020, the Court of Appeal decision in Civil Appeal No. 18 of 2013, and ELRC Cause No. E747 of 2021, do not conclusively bar it from representing water sector employees. It argues that the refusal to register the CBA in ELRC CBA No. 34 of 2020 was based on the existence of a prior recognition agreement and CBA with NUWASE, rather than a lack of capacity or locus.
15. The 1st Respondent submits that the legal landscape has since changed following the enactment of the Water Act, 2016, under which employees of water and sewerage companies are deemed county government employees. It therefore contends that its Constitution lawfully authorizes it to recruit and represent such employees, bringing them within its organizational scope.
16. The 1st Respondent argues that the earlier decisions relied upon by the Applicant were made before the promulgation of the Constitution of Kenya, 2010, and the enactment of the Water Act, 2016, and are therefore no longer reflective of the current legal framework. It contends that, following devolution, water and sanitation services became county government functions, making employees of water and sewerage companies county government employees whom it is constitutionally entitled to represent.
17. The 1st Respondent further relies on subsequent judicial pronouncements, including Geoffrey Makana Asanyo v Nakuru Water and Sanitation Services Company & 7 Others and Kenya County Government Workers Union v Nairobi Water & Sewerage Company Ltd & Others (2025), to argue that employees of water companies are county government employees and that the appropriate union to represent them should be determined in accordance with constitutional rights to freedom of association and collective bargaining, rather than by earlier authorities decided under the pre-2010 legal regime.
18. The 1st Respondent therefore maintains that its representation of employees in the water sector is lawful under the current constitutional and statutory framework.
19. The 1st Respondent contends that the legal position has fundamentally changed following the Constitution of Kenya, 2010, and the enactment of the Water Act, 2016, which devolved water and sanitation services to county governments and requires counties to establish water service providers. It argues that employees of water and sewerage companies are, therefore, county government employees and fall within its constitutional mandate to recruit, represent, and allow participation in its union elections.
20. The 1st Respondent further submits that stopping its elections would disrupt union operations, including collective bargaining, disciplinary processes, and implementation of existing CBAs, while unfairly denying its members their constitutional right to associate and participate in union affairs.
21. The 1st Respondent also disputes the Applicant's interpretation of the Court of Appeal decision in Civil Appeal No. 18 of 2013, arguing that the decision did not declare KUWASE as the exclusive union for the water sector or prohibit the 1st Respondent from recruiting or representing water sector employees. Relying on the decisions in Julia Mwenje Nyinkuri v Kenya County Government Workers Union (2021) and Nyambane & Another v Kenya County Government Workers Union & 3 Others (2025), the 1st Respondent maintains that employees are free to join a union of their choice and that no trade union acquires an automatic exclusive right of representation merely because it is considered the most relevant union in a particular sector. Representation, it argues, depends on the recruitment of members and the attainment of the statutory threshold for recognition.
22. The 1st Respondent further argues that it is lawfully entitled to recruit and represent employees of water and sewerage companies under the Constitution, the Water Act, 2016, the Labour Relations Act, and its own Constitution. It maintains that no court has granted any union exclusive representation rights in the water sector and that employees are constitutionally free to join a union of their choice.
23. It further contends that the Applicant is improperly seeking a monopoly in the water sector through court orders rather than by recruiting members as required under section 54 of the Labour Relations Act. It asserts that it already enjoys recognition agreements with numerous water companies and that the conservatory orders unjustifiably disrupt its elections, collective bargaining, and representation of its members.
24. Accordingly, the 1st Respondent urges the Court to dismiss the application for failure to establish a prima facie case or any constitutional violation warranting conservatory relief.
25. The 2nd Respondent also opposed the application vide a Replying affidavit sworn by ANN KANAK, the Registrar of Trade Unions on 17th June, 2026.
26. The 2nd Respondent, the Registrar of Trade Unions, states that its mandate is limited to the registration and regulation of trade unions and their constitutions, and that registration of a union's constitution does not confer exclusive rights to recruit members, obtain recognition, or negotiate collective bargaining agreements. Those issues are governed by the Labour Relations Act, judicial decisions, and the facts of each case.
27. The Registrar acknowledges existing judicial decisions holding that the water sector is a specialized sector and that there is no overlap between the representational mandates of the Applicant and the 1st Respondent. The Registrar further affirms that it is bound by those decisions and will comply with any orders issued by the Court.
28. Finally, the Registrar notes that the Court has already issued interim orders preserving the subject matter of the dispute by restraining the 1st Respondent from conducting elections in the water sector. Accordingly, it maintains that there is no immediate prejudice requiring further interim intervention and that the substantive issues concerning Article 6.1 of the 1st Respondent's Constitution should be determined at the full hearing.
29. The Court issued interim conservatory orders sought in the application of 14th January, 2026, which resulted in the second application dated 20th January, 2026, which was brought pursuant to Sections 3 & 12 of the Employment&. Labour Relations Court Act, Rules 45, 46 & 47 of the Employment and Labour Relations Court (Procedure) Rules, 2024, where the 1st Respondent sought the following reliefs:-
i. Spent
ii. Spent
iii. Spent
iv. THAT the Honorable Court be pleased to issue an order compelling the Registrar of Trade Unions, the 2nd Respondent herein, to register the names of the officials of the 1st Respondent/Applicant herein elected in the branch elections held on 17th January, 2026, pending the hearing and determination of this application and the Claimant's application and claim.
v. THAT the suit herein and/or the Claimant/Respondent's Chamber motion application filed before this Honorable Court be struck out for being incompetent, vexation, frivolous and an otherwise abuse of the court process.
vi. THAT this Honourable Court be pleased to grant any other order, relief, and or further orders or reliefs as it may deem fit and necessary to grant in the interests of justice and fairness.
vii. THAT costs be provided for, and the same be borne by the Claimant/Respondent herein.
30. This latter application is supported by grounds on the face thereof and the affidavit of ROBA SHARU DUBA, sworn on 20th January, 2026.
31. The 1st Respondent/Applicant states that although this Court issued conservatory orders on 16th January 2026, restraining the implementation of its election notice in respect of employees of water and sewerage companies, the orders were served after office hours on the eve of the scheduled elections. It contends that it only became aware of the orders on 19th January 2026, by which time the branch elections had already been conducted on 17th January 2026, including participation by members employed in water and sewerage companies.
32. Accordingly, the 1st Respondent argues that the conservatory orders have been overtaken by events, are incapable of implementation, and have become spent and moot.
33. The 1st Respondent/Applicant avers that it now seeks a review and setting aside of the conservatory orders, arguing that they were served after office hours on the eve of the elections, making compliance impossible. It accuses the Claimant of acting in bad faith by effecting late service and concealing material facts, including the extensive logistical and financial preparations already undertaken and the nationwide scope of the elections, which involve over 28 water companies.
34. The 1st Respondent further contends that the elections concerned its internal governance and voluntary members, such that the Claimant suffers no prejudice from their conduct. Instead, it argues that the conservatory orders have created a representation vacuum in water companies where it enjoys recognition. It also maintains that the Claimant has misinterpreted the Court of Appeal and other judicial decisions by incorrectly asserting that the 1st Respondent lacks locus standi to recruit or represent employees in the water sector.
35. The 1st Respondent relies on recent judicial decisions to argue that the Court of Appeal did not declare any union to have exclusive representational rights in the water sector or prohibit it from recruiting and representing employees of water companies. It cites Nyambane & Another v Kenya County Government Workers Union & 3 Others (2025) and Kenya County Government Workers Union v Kisumu Water & Sewerage Co. Ltd (2021) for the proposition that the right to representation depends on recruitment of a simple majority of employees under the Labour Relations Act, rather than on a judicial declaration that a union is the "most relevant" for a sector.
36. The 1st Respondent further contends that the Applicant is seeking to establish an unconstitutional monopoly in the water sector by preventing other unions from representing employees. It argues that the courts have rejected the outdated concept of "one industry, one union," affirming instead that employees enjoy the constitutional freedom to join a trade union of their choice, existing recognition agreements and CBAs remain valid, and no union acquires automatic or exclusive bargaining rights merely because it is regarded as the most relevant union in a particular sector.
37. The 1st Respondent further states that employees of water and sewerage companies are county government employees under the Constitution and the Water Act, 2016, and therefore fall within its lawful recruitment and representation mandate. It contends that requiring it to remove Article 6 from its Constitution would unlawfully interfere with its constitutional right to manage its internal affairs and organize its activities.
38. The 1st Respondent further maintains that the conservatory orders have disrupted its internal governance, including elections, collective bargaining, disciplinary processes, and implementation of CBAs, while disenfranchising members who voluntarily joined the union. Relying on Julia Mwenje Nyinkuri v Kenya County Government Workers Union (2021), it argues that neither the Court of Appeal nor any other court has restricted employees' freedom to join a union of their choice or to participate in that union's elections.
39. The 1st Respondent/Applicant therefore urges the Court to set aside the interim orders to prevent prejudice and the risk of contempt proceedings.
40. The Claimant/Respondent opposed the 1st Respondent/Applicant’s motion dated 20th January, 2026 vide a replying affidavit sworn by MATILDA KIMETTO on 5th February, 2026.
41. The Claimant states that the 1st Respondent's application dated 20th January 2026 principally seeks a review, variation, discharge, or setting aside of the conservatory orders issued on 16th January 2026 on the grounds that the orders were served too late for compliance and were obtained without full disclosure of material facts, and further seeks an order compelling the Registrar of Trade Unions to register the officials elected during the branch elections held on 17th January 2026.
42. The Claimant contends that the application is fatally defective, incompetent, and an abuse of the court process, and that the conservatory orders issued on 16th January 2026 were served promptly after they became available on the Judiciary's e-filing system, and denies any allegation of bad faith or deliberate late service. It maintains that the 1st Respondent received the orders through its official email on the same day and should bear the consequences of any non-compliance.
43. The Claimant further argues that the 1st Respondent continues to misrepresent its legal status by claiming authority to represent employees in the water sector, contrary to binding judicial decisions. Relying on previous rulings, particularly Kenya County Government Workers Union v Nairobi Water and Sewerage Company Limited & National Union of Water and Sewerage Employees (2021), the Claimant maintains that the Court of Appeal affirmed that the 1st Respondent has no right to recruit or represent employees in the water services sector and that its continued assertion of such authority is causing confusion and disruption within the sector.
44. The Claimant reiterates that it is the lawfully registered trade union for employees in the water sector, having been registered on 23rd April 2025 following the deregistration of KUWASE. It states that KUWASE's challenge to its deregistration was dismissed by the Court on 25th July 2025, thereby affirming the Registrar of Trade Unions' decision and recognizing WASWU as the proper union for the water services sector.
45. The Claimant finally contends that the 1st Respondent's application is frivolous, incompetent, and an abuse of the court process, as it ignores binding judicial and administrative decisions.
46. The Claimant therefore urges the Court to dismiss the application with costs and uphold the conservatory orders.
47. Parties canvassed the applications through written submissions, which have been duly considered.
Analysis and Determination
48. The issue for determination is whether the 1st Respondent/Applicant has satisfied the legal threshold for review, variation, discharge, or setting aside of the conservatory orders issued on 16th January 2026.
49. The Applicant's application (20/1/2026) rests on four principal grounds, the first is the allegation that the conservatory orders were served too late for compliance, that the orders were overtaken by events because the elections had already been conducted, that the orders were obtained through material non-disclosure, and finally that the Court misapprehended the law relating to its mandate to represent employees in the water sector.
50. The Claimant, on its part, maintains that service was effected immediately after extraction of the orders from the Judiciary e-filing system, that the Applicant had notice of the orders before the elections were held, and that the application is merely an attempt to re-litigate issues already settled by binding judicial decisions.
51. The 2nd Respondent herein, who is the Registrar of Trade Unions, confirms that registration of a trade union constitution does not confer recognition or bargaining rights and acknowledges previous judicial pronouncements recognizing the specialized nature of representation in the water sector. The Registrar further observes that the conservatory orders issued under the motion dated 14th January, 2026, have already preserved the subject matter pending determination of the dispute.
52. On whether the Court should review or discharge the conservatory orders, the jurisdiction to review interlocutory orders is exercised sparingly. Rule 74 of the Employment and Labour Relations Court (Procedure) Rules 2024 permits review only where there is discovery of new and important evidence, an error apparent on the face of the record, or for any other sufficient reason.
53. In National Bank of Kenya Ltd v Ndungu Njau [1997] KECA 389 (KLR), the Court held that review is not available merely because a party believes the court reached an erroneous decision. Such dissatisfaction is a ground for appeal, and not review.
54. The Applicant herein has not, in my view, demonstrated discovery of any new evidence, an error apparent on the face of the record, or any sufficient reason warranting review of the conservatory orders issued on 16th January, 2026. Instead, the Applicant substantially reargues the merits of the dispute concerning its constitutional mandate to organize employees in the water sector, which are the very issues reserved for determination in the main suit.
55. The Applicant further argues that it only became aware of the orders after the elections were held. It is evident that counsel immediately extracted the orders and emailed them to the Applicant at approximately 4.59 p.m. on the same day they were issued, and the 1st Respondent/Applicant acknowledged receipt of the email.
56. In Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & Another [2005] KEHC 3180 (KLR), the Court held:-
“It is the plain and unqualified obligation of every person against whom an order is made to obey it unless and until it is discharged”.
57. Further, in Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] KEELRC 656 (KLR), the Court reiterated that court orders remain binding until set aside.
58. In whole, the Applicant has failed to demonstrate that service was ineffective or that late service alone constitutes sufficient reason for review.
59. On whether this court should lift the conservatory orders, the 1st Respondent/Applicant argues that since elections proceeded on 17th January 2026, the orders were spent.
60. Contrary to the Applicant’s assertion, where acts are undertaken in violation of existing court orders, the dispute does not become academic merely because those acts have been completed. Rather, the Court retains jurisdiction to determine the legality of those acts, the consequences of non-compliance, and to grant an appropriate relief.
61. The Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] KESC 38 (KLR), explained that conservatory orders exist principally to preserve the integrity of proceedings and prevent actions capable of defeating eventual relief.
62. There is no doubt that allowing parties to defeat court orders by rushing to complete impugned actions would undermine the administration of justice.
63. In the final analysis, I find and hold that the 1st Respondent/Applicant’s contention that the elections were completed does not render the conservatory orders moot, as the Court retains jurisdiction to determine the legality and consequences of actions undertaken in the face of its orders.
64. Accordingly, the Notice of Motion dated 20th January 2026 lacks merit and is dismissed, and the conservatory orders issued on 16th January 2026 shall remain in force pending the hearing and determination of the substantive claim.
65. The cost of the application shall abide the outcome of the main suit.
66. Orders accordingly.
SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 9TH DAY OF JULY, 2026.
Appearance:
Ms. Mpiti h/b for Mr. Ngwele present for the Claimant.
Mr. Odinga h/b for Mr. Mwaura for the 1st Respondent
N/A for the 2nd Respondent
Mr. Otieno h/b for Mr. Maosa for Intended Interested Party.
Ms. Esther S-C/A