Kenya National Union Of Nurses v Nairobi County Government & 5 others [2015] KEELRC 374 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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
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.
Whether the cited county officers were in contempt of the orders of 17th April 2015
Contempt application rejected: no proof of service or knowledge of the orders, and the orders did not cover suspension or withholding of salaries
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.
Whether the County Chief Medical Officer should be sued in his personal capacity
No; he was struck out from the proceedings with costs to him
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.
What orders the court can give in the circumstances
Security for the nurses enforced by the 1st and 4th Respondents; parties encouraged to negotiate and conciliate pending the main suit
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.
Legal principles established
#- 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
#- 1.Security of the nurses at Pumwani Maternity to be enforced by the 1st Respondent and 4th Respondent
- 2.The parties are encouraged to engage in negotiations and conciliation to ensure proper resolution of the suit
- 3.The order to remain in force until the main suit is dispensed with
- 4.The 5th Respondent struck out from the proceedings with costs to him
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.