Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedApplication dated 13/3/2015 (Cause not stated in judgment)· [2015] KEELRC 738 (KLR)

Kenya National Union of Nurses v Samuel Kambi Kazungu (Cabinet Secretary, Ministry of Labour, Social Security and Services & 4 others [2015] KEELRC 738 (KLR)

Employment and Labour Relations Court
7 July 2015
HWHellen Wasilwa
1,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Kenya National Union of Nurses, registered on 19 April 2013, brought an urgent application seeking to stay the implementation of Kenya Gazette Supplement No. 19 dated 20 February 2015, by which the Cabinet Secretary for Labour gazetted the deduction of agency fees from all civil servants purportedly for the benefit of the Union of Kenya Civil Servants (UKCS) under a collective bargaining agreement with the Government. The Union argued that its nurse members in the public service had not benefited from the said CBA, that no valid CBA existed after June 2013, and that the statutory prerequisites in Section 49(2) of the Labour Relations Act - including a request supported by a list of employees from whom deductions would be made - had not been satisfied. It also relied on prior rulings in Cause 1570 of 2013 by Justice Nduma and by Justice Marete. The UKCS opposed the application, contending that a pre-2013 CBA had benefited all civil servants including nurses, and that the earlier ruling had been negated when that cause was withdrawn on 30 January 2015. The Council of Governors also opposed, noting that following devolution of health, the Applicant would have to negotiate with individual counties. Justice Hellen Wasilwa held that agency fees may only be collected under Section 49(1) by a union with a collective agreement registered by the Industrial Court, that neither the Applicant nor the 3rd Respondent had any registered CBA with the Government from July 2013, and that no list of employees had been supplied as the law requires. The gazette notice was premature. Finding a prima facie case, the Court granted prayers 4 and 5, staying implementation of the Gazette Supplement and the agency fee deductions pending determination of the main suit, with costs in the course.

Key legal issues

#
01

Whether the Gazette Supplement No. 19 of 20/2/2015 authorising agency fee deductions complied with Section 49 of the Labour Relations Act

Holding

The gazette notice was premature; neither the Claimant nor the 3rd Respondent had a registered collective bargaining agreement with the Government after July 2013, and no list of employees from whom deductions would be made was supplied as envisaged under the law.

Reasoning

Section 49(1) permits agency fee collection only by a union with a collective agreement registered by the Industrial Court. Section 49(2) requires, among other things, a request signed by authorised representatives and a list of employees prepared by the employer. Following the Salaries and Remuneration Commission circular of 4/7/2012, no registered CBA existed from July 2013, and the list of beneficiaries was never provided. The statutory parameters were therefore unmet and deductions could not lawfully proceed.

p. 4
02

Whether the Applicants had established a prima facie case for interim relief

Holding

The Court found the Applicants had established a prima facie case warranting the orders sought and granted a stay pending determination of the main suit.

Reasoning

The Court considered the parties' submissions, found convergence on Section 49(1) of the Labour Relations Act, determined that the statutory preconditions for agency fee collection had not been satisfied, and concluded that the Applicants had demonstrated a prima facie case justifying the interlocutory orders pending the full hearing of the claim.

p. 4

Legal principles established

#
  • Agency fees may only be collected by a trade union that has concluded a collective bargaining agreement registered by the Industrial Court, and the statutory prerequisites in Section 49(2) of the Labour Relations Act must be satisfied.
  • Where no registered collective bargaining agreement exists and no list of employees is supplied, a gazette notice authorising agency fee deductions is premature.

Court orders

#
  1. 1.Stay of the implementation of the Kenya Gazette Supplement No. 19 dated 20th February 2015 upon members of the Kenya National Union of Nurses pending hearing and determination of the main suit (prayer 4)
  2. 2.Stay of the implementation of the deduction of agency fees upon members of the Kenya National Union of Nurses pending hearing and determination of the main suit (prayer 5)
  3. 3.Costs in the course

Authorities

#

Legislation

  • Labour Relations ActSection 4(1)
  • Labour Relations ActSections 49(1) to 49(6)
  • Constitution of Kenya, 2010Article 41
Jurisdiction invoked
Labour Relations Act, Section 49

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Union of Nurses v Samuel Kambi Kazungu (Cabinet Secretary, Ministry of Labour, Social Security and Services & 4 others [2015] KEELRC 738 (KLR)", Case Analysis (2015). Application dated 13/3/2015 (Cause not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/738/eng@2015-07-07

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