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ELRCOtherCause No. 1525 of 2012· [2012] KEELRC 253 (KLR)

KENYA MEDICAL PRACTITIONERS PHARMACISTS AND DENTISTS’ UNION V KENYATTA NATIONAL HOSPITAL & 3 OTHERS [2012] KEELRC 253 (KLR)

Industrial Court of Kenya
18 September 2012
1,384 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court threw out conflicting orders in the doctors' strike case, ruling a union cannot litigate and strike over the same dispute at once.

What this practically means

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Executive summary

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The Kenya Medical Practitioners, Pharmacists and Dentists' Union filed a motion on 30th August 2012 in which the Court restrained the first to third respondents from dismissing union members participating in a strike. Before the inter partes hearing, the Union filed a further contempt application which was declined, and parallel causes (No. 1617 and No. 1618 of 2012) were filed, including one by the Attorney General seeking to stop the strike, which was granted. The Court found itself seized of contradictory orders: one stopping the strike and another restraining dismissal of strikers, which it held could not co-exist since the restraint on dismissal presupposed a lawful strike. All causes stemmed from the December 2011 Return to Work Formula. The Court decried the avalanche of suits between the same parties over the same issues through different advocates, holding that multiplicity of suits undermines good industrial relations and the just and expeditious resolution envisaged by Section 3 of the Industrial Court Act, 2011, and may amount to abuse of process. It further held that equity would not permit the Union to seek judicial enforcement of the Return to Work Formula while prosecuting a strike in parallel. Exercising its inherent powers under Rule 36 of the Industrial Court (Procedure) Rules 2010, the Court stayed Cause No. 1525 of 2012 pending determination of Causes No. 1617 and No. 1618 of 2012, vacated the orders of 30th August 2012, and made no order as to costs.

Key legal issues

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01

Whether the conflicting orders in Causes 1525, 1617 and 1618 of 2012 could stand together

Holding

They could not; one had to give way, and the Court exercised its inherent powers to stay the instant cause pending the later-filed causes.

Reasoning

The Court identified two irreconcilable orders: one stopping the strike (Cause 1618) and one restraining dismissal of strikers (Cause 1525). The restraint on dismissal presupposes a lawful strike. Because the same Return to Work Formula underlay all causes and the parties' conduct prevented clarification, the Court used its inherent powers under Rule 36 to stay the earliest cause pending the later ones.

p. 2
02

Whether the Claimant Union's parallel litigation and strike amounted to abuse of process

Holding

The multiplicity of suits over the same issues between essentially the same parties was inconsistent with the just and expeditious resolution contemplated by Section 3 of the Industrial Court Act and could amount to abuse of process.

Reasoning

The Court noted an avalanche of suits with identical issues filed through different advocates, including by the same claimant. Such multiplicity undermines good industrial relations and the objectives of the Industrial Court Act, 2011, and the Court must ensure its orders are obeyed and complied with.

p. 3

Legal principles established

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  • Contradictory orders in parallel causes between the same parties cannot co-exist; one must give way.
  • Multiplicity of suits with the same subject matter between essentially the same parties may amount to abuse of the Court's process.
  • A party cannot invoke the Court's assistance to enforce an agreement while simultaneously pursuing a strike in parallel.

Court orders

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  1. 1.Cause No. 1525 of 2012 be stayed pending the hearing and determination of Cause No. 1618 of 2012 and Cause No. 1617 of 2012
  2. 2.The orders given on 30th August 2012 and extended thereafter are vacated
  3. 3.No order as to costs

Authorities

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Legislation

  • Labour Relations Actdefinition of essential services
  • Industrial Court Act2011, generally; Section 3
  • Industrial Court (Procedure) RulesRule 36
Jurisdiction invoked
Industrial Court Act, 2011 (including Section 3 and the inherent powers under Rule 36 of the Industrial Court (Procedure) Rules 2010)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "KENYA MEDICAL PRACTITIONERS PHARMACISTS AND DENTISTS’ UNION V KENYATTA NATIONAL HOSPITAL & 3 OTHERS [2012] KEELRC 253 (KLR)", Case Analysis (2012). Cause No. 1525 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/253/eng@2012-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.