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ELRCPartially AllowedNot stated in the extract (interlocutory applications in an employment claim)· [2015] KEELRC 374 (KLR)

Kenya National Union Of Nurses v Nairobi County Government & 5 others [2015] KEELRC 374 (KLR)

Employment and Labour Relations Court
19 October 2015
3,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to punish county officers for contempt because they were never proved to know about the orders, but ordered nurses' security enforced.

What this practically means

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Executive summary

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The Employment and Labour Relations Court, Wasilwa J, determined four applications arising from a dispute over nurses at Pumwani Maternity Hospital following a media report of swapped babies, an early-morning attack on nurses, their absence from work, and the County Government's issuance of show-cause letters, suspension letters and withholding of salaries. The court framed three issues: proper joinder of the national government respondents, contempt of its interim orders, and the orders to issue. On joinder, it held that although health is devolved, the Public Service Commission is the overall employer of civil servants seconded to counties and the Permanent Secretary remains accounting officer for health nationally, so the 2nd, 3rd and 4th Respondents were properly enjoined; the Attorney General's presence was also welcome since security is a national function. The 5th Respondent, the County Chief Medical Officer, was struck out with costs for being improperly sued in his personal capacity. On contempt, the court found no proof of service or knowledge of the 17th April 2015 orders by the cited officers, and further that the orders of 16/4/2015 did not address suspension or salary withholding, so no breach was established and the contempt application was rejected. The court affirmed the employer's power to discipline errant employees with due process, ordered that security of the nurses be enforced by the 1st and 4th Respondents, encouraged negotiations and conciliation, and directed the order to remain in force until the main suit is determined.

Key legal issues

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01

Whether national government officers (Public Service Commission, Permanent Secretary Ministry of Health, Cabinet Secretary) and the Attorney General are properly joined in a dispute over county-devolved health services

Holding

The 2nd, 3rd and 4th Respondents are properly enjoined; the PSC is the overall employer of seconded civil servants and the AG's presence is welcome on security issues

Reasoning

Health functions are devolved, but the Permanent Secretary remains overall accounting officer of health functions nationally, and the PSC employed, and seconded, some nurses to counties. Section 73(1) of the County Government Act protects seconded officers, so keeping the PSC on board serves the interests of justice. Section 43 of the same Act permits the AG to represent a county government, and security is a national government function.

p. 5
02

Whether the cited county officers were in contempt of the orders of 17th April 2015

Holding

Contempt application rejected: no proof of service or knowledge of the orders, and the orders did not cover suspension or withholding of salaries

Reasoning

Service was on the Litigation Department only; the claimant did not prove the contemnors' knowledge. Applying the principle in Prof. Mwaniki Silas Ngari v Prof. John S. Akama (citing the Wambora case) that knowledge suffices, failure to prove knowledge is fatal. Further, the orders of 16/4/2015 only forbade harassment, intimidation and assault, not suspension or salary withholding, so no breach was established.

p. 6
03

Whether the County Chief Medical Officer should be sued in his personal capacity

Holding

No; he was struck out from the proceedings with costs to him

Reasoning

The claimant did not specifically plead the 5th Respondent's role in relation to the orders sought. Since the County Government itself is a party and the 5th Respondent is merely its employee, it is improper to sue him personally.

p. 5
04

What orders the court can give in the circumstances

Holding

Security for the nurses enforced by the 1st and 4th Respondents; parties encouraged to negotiate and conciliate pending the main suit

Reasoning

Having considered all three applications, the court held that security of workers is paramount and must be provided by both the employer (1st Respondent) and the 4th Respondent (national government). Harassment and intimidation of nurses must be discouraged, but this does not remove the employer's disciplinary powers exercised with due process.

p. 6

Legal principles established

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  • Knowledge of a court order is sufficient for purposes of contempt proceedings, even without personal service
  • A court order restraining harassment does not oust an employer's power to discipline errant employees following due process

Court orders

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  1. 1.Security of the nurses at Pumwani Maternity to be enforced by the 1st Respondent and 4th Respondent
  2. 2.The parties are encouraged to engage in negotiations and conciliation to ensure proper resolution of the suit
  3. 3.The order to remain in force until the main suit is dispensed with
  4. 4.The 5th Respondent struck out from the proceedings with costs to him

Authorities

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Legislation

  • Occupier Safety Health ActSections 2, 6 and 8
  • Labour Relations ActSection 80
  • County Government ActSection 55(b)
  • County Government Act 2012Section 73(1)
  • County Government Act 2012Section 43
  • Attorney General ActSection 5
  • Constitution of Kenya 2010Articles 152, 155, 156 and 156(4)

Cases cited (1)

  • Prof. Mwaniki Silas Ngari vs. Prof. John S. Akama & Another
Jurisdiction invoked
Employment and labour relations jurisdiction; court exercising first-instance jurisdiction over applications in a claim concerning nurses' employment and work environment

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 National Union Of Nurses v Nairobi County Government & 5 others [2015] KEELRC 374 (KLR)", Case Analysis (2015). Not stated in the extract (interlocutory applications in an employment claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/374/eng@2015-10-19

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