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ELRCAllowedNotice of Motion dated 17.4.2015 (in the main suit, ELRC, Mombasa)· [2015] KEELRC 619 (KLR)

Kenya National Union of Nurses v County Government of Mombasa & 2 others (Cause 244 of 2015) [2015] KEELRC 619 (KLR)

Employment and Labour Relations Court
31 July 2015
OMO. N Makau
2,619 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a trade union, moved the Employment and Labour Relations Court at Mombasa by Notice of Motion dated 17.4.2015 on behalf of its members (grievants) - health workers originally employed by the national government under the Economic Stimulus Program and transferred to the Mombasa County Government after devolution of health services under the 2010 Constitution. The grievants, engaged on three-year fixed-term contracts that had been extended short-term, complained that the 1st and 2nd Respondents advertised 50 new permanent and pensionable nursing positions in December 2014 and January 2015 without first absorbing them on permanent terms, contrary to the expectation created by the transfer and consistent with the position in the Grace N. Makori decision. The court framed the sole question as whether the motion met the threshold for conservatory orders. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found a prima facie case: the grievants held a genuine expectation of permanent absorption, the advert did not evidence a special Peri-Operative cadre, and the county had funds it chose to allocate elsewhere. Irreparable harm was shown since some contracts had expired or were expiring without gratuity provisions, and the balance of convenience favoured preserving employment so the suit would not be rendered nugatory. The motion was allowed: the Respondents were restrained from hiring new nurses on permanent terms before absorbing the grievants, new recruits were barred from assuming office before such absorption, the grievants were to continue in employment on ESP terms or better pending trial, and costs were reserved to the cause.

Key legal issues

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01

Prima facie case for conservatory orders

Holding

The Claimant established a prima facie case with probability of success because the grievants hold a genuine and reasonable expectation of absorption on permanent and pensionable terms before any new recruits

Reasoning

The grievants were employed on fixed-term ESP contracts and transferred to the county after devolution; their contracts were extended short-term pending absorption. The 1st and 2nd Respondents admitted willingness to absorb them once specialty evaluation and funding were concluded. The court found no justification in the defence that the advertised 50 posts were a special Peri-Operative cadre, as the advert did not show that. Recruiting new nurses on permanent terms first would probably terminate or non-renew the grievants' contracts, infringing rights already declared unfair in the Grace N. Makori case.

p. 6
02

Irreparable harm

Holding

The grievants are likely to suffer injury not adequately compensable in damages if the injunction is denied, as some contracts have expired or are about to expire and no separation benefits are provided

Reasoning

The court examined the contracts annexed to the pleadings and found no provision for separation gratuities. Expiry of the contracts without protection would deprive the grievants of their expectations to serve in the public service, displaced by new recruits, an injury damages cannot adequately remedy.

p. 6
03

Balance of convenience

Holding

The balance of convenience favours the grievants because losing their jobs before trial would destroy the substratum of the suit and render it nugatory

Reasoning

The grievants are already in employment under the ESP. If they lose their employment before the suit is determined, the suit would be rendered moot and nugatory should it succeed at trial. Continuation of employment preserves the subject matter of the litigation pending full determination.

p. 6

Legal principles established

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  • An applicant for interlocutory injunction must show not only an arguable case but also that a legal right has been infringed or is about to be infringed
  • Denying ESP staff permanent employment while recruiting others on permanent terms amounts to unfair labour practice contrary to Article 41 of the Constitution

Court orders

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  1. 1.A conservatory order restraining the 1st and 2nd Respondents from hiring any other nurses on permanent and pensionable terms before first absorbing the grievants in such terms, pending the hearing and determination of the suit
  2. 2.If the Respondents have already recruited nurses as advertised in December 2014 and January 2015, they are restrained from allowing the new nurses to assume office before first absorbing the grievants on permanent and pensionable terms pending the hearing and determination of the suit
  3. 3.All the grievants shall continue in employment under the same terms of the ESP contract or such other better terms as may be agreed pending the hearing and determination of the suit, whether or not their respective contracts lapse before then
  4. 4.Costs of the Motion to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 187(2)

Cases cited (5)

  • Giella vs Cassman Brown & Co. Ltd
    [1975] E.A. 358
  • Mrao Limited vs First American Bank of Kenya
    [2003] KLR 125
  • Grace N. Makori and 176 others vs Muranga County Public Service Board & 2 others
    null
  • Kenya Union of Nurses Vs Nandi County Public Services Board & Others
    ELRC No. 89 of 2015
  • Paul Kamau Maina & Others vs Kenya Civil Aviation Authority
    ELRCC No. 88 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution (fair labour practices) over employment of ESP health workers devolved under Article 187(2)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya National Union of Nurses v County Government of Mombasa & 2 others (Cause 244 of 2015) [2015] KEELRC 619 (KLR)", Case Analysis (2015). Notice of Motion dated 17.4.2015 (in the main suit, ELRC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/619/eng@2015-07-31

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