Moi Teaching & Referral Hospital v Kenya National Union of Nurses [2016] KEELRC 112 (KLR)
The bottom line
#A Kenyan court blocked nurses' strike for just 45 days, ruling judges shouldn't contradict each other on whether strike laws are constitutional.
What this practically means
#Executive summary
#Key legal issues
#Effect of a prior constitutional ruling by a judge of concurrent jurisdiction on sections 78(1)(f) and 81(3) of the Labour Relations Act
The Court declined to make the declaration sought under section 81(3), holding that the Principal Judge had already concluded the provision was inconsistent with the supreme law, and referred the matter for further directions possibly before a larger bench
The employer's application was largely predicated on section 81(3), which the Principal Judge had found unconstitutional. The Court held that judicial comity and prudence require a single judge not to contradict a decision of a judge of the same rank on constitutionality; the alternatives are a larger bench or an appeal. Pending those directions, interim protection was granted only for a limited period of 45 days.
Whether to grant a temporary prohibition of the strike pending hearing of the claim
Granted, but only for a limited period of 45 days pending directions by the Principal Judge
Although the Union argued the motion was res judicata and that the right to strike is constitutionally protected under Article 41, the Court found the essential-services issue transcended the two litigants and required the Principal Judge's directions. To preserve the position in the interim, proposed order (c) was granted for a limited 45-day period rather than until hearing of the claim.
Legal principles established
#- Where a judge of comparable/concurrent jurisdiction has made a finding on the constitutionality of a statutory provision, another judge should not purport to reach a different conclusion; the proper course is to refer the matter to a larger bench or prefer an appeal
- Certainty and consistency in constitutional interpretation of statutes is necessary so that social partners can organise themselves where competing rights and interests are in issue
Court orders
#- 1.Granted proposed order (c) of the motion dated 12 October 2016, being a temporary order prohibiting the Respondent's members individually and collectively or its agents from proceeding, participating, inciting or taking part in any strike or go-slow at the Claimant's place of work pursuant to the strike notice dated 23/9/2016, but for a limited period of 45 days
- 2.Directed that the Cause be placed before the Principal Judge to give further directions as to the next course of action
- 3.Cause to be mentioned before the Principal Judge on 8 December 2016
- 4.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes and interim relief under the Labour Relations Act; motion filed under certificate of urgency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moi Teaching & Referral Hospital v Kenya National Union of Nurses [2016] KEELRC 112 (KLR)", Case Analysis (2016). Not stated in the extract (motion dated 12 October 2016 within a cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/112/eng@2016-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.