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ELRCOtherNot stated in the extract (motion dated 12 October 2016 within a cause)· [2016] KEELRC 112 (KLR)

Moi Teaching & Referral Hospital v Kenya National Union of Nurses [2016] KEELRC 112 (KLR)

Employment and Labour Relations Court
2 December 2016
717 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 blocked nurses' strike for just 45 days, ruling judges shouldn't contradict each other on whether strike laws are constitutional.

What this practically means

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Executive summary

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Moi Teaching & Referral Hospital moved the Employment and Labour Relations Court at Nakuru by motion dated 12 October 2016 seeking, among other reliefs, a temporary order prohibiting members of the Kenya Union of Nurses from proceeding with, participating in, inciting or taking part in a strike or go-slow pursuant to a strike notice dated 23 September 2016, pending hearing of the main claim. The employer grounded the motion on the assertion that it provides essential services, so that under section 78(1)(f) of the Labour Relations Act the Union could not validly call or participate in a strike, and it also sought a declaration that Union members belong to essential services under section 81(3). The Union opposed, arguing res judicata by reference to earlier causes, failure of the Giella v Cassman Brown test, and the constitutional protection of the right to strike under Article 41. Both parties cited the Principal Judge's decision in Okiya Omtatah Okoiti v Attorney General & 5 others on the constitutionality of sections 78(1)(f) and 81(3), giving conflicting readings of it. Radido J held that since the Principal Judge had already found the statutory anchor of the employer's claim inconsistent with the Constitution, a single judge of concurrent jurisdiction should not reach a different conclusion; the proper course is a larger bench or an appeal. The Court granted proposed order (c) only for 45 days, directed that the cause be placed before the Principal Judge for further directions on 8 December 2016, and ordered costs in the cause.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 2
02

Whether to grant a temporary prohibition of the strike pending hearing of the claim

Holding

Granted, but only for a limited period of 45 days pending directions by the Principal Judge

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.Directed that the Cause be placed before the Principal Judge to give further directions as to the next course of action
  3. 3.Cause to be mentioned before the Principal Judge on 8 December 2016
  4. 4.Costs in the cause

Authorities

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Legislation

  • Labour Relations Actsection 78(1)(f)
  • Labour Relations Actsection 81(3)
  • Constitution of Kenya, 2010Article 41

Cases cited (2)

  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Okiya Omtatah Okoiti v Attorney General & 5 others
    (2015) eKLR
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

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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, "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.