Kenya National Union of Nurses v Council of Governors, Siaya County Public Service Board & 6 others [2016] KEELRC 1251 (KLR)
The bottom line
#A Kenyan court ordered county governments to confirm contract ESP nurses into permanent, pensionable jobs, holding the Council of Governors bound by its own 2015 resolutions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Union had to name the individual ESP staff (grievants) it purported to represent
The grievants were identified in annexure SP-2A to the Memorandum of Claim, so the objection failed
The 4th Respondent argued the Union had not listed the names of the persons it acted for. The Court noted the names of the grievants were set out in the Union's annexure SP-2A to the Memorandum of Claim, so the requirement of identification was satisfied and the objection did not defeat the claim.
Whether the Council of Governors and Counties were bound by the 11 February 2015 resolutions and the National Government Circulars
Yes; the Council of Governors participated in the consultations and could not disown the resolutions; the Court of Appeal had found no unconstitutional usurpation of county functions
The Council of Governors is a statutory creature that took part in the 11 February 2015 consultations and agreed to the resolutions. Even if National Government Circulars lacked legal effect under the separation of powers (a position the Court was not prepared to accept), participation bound its members. The Court of Appeal in Grace N. Makori found the PSC letters merely communicated pre-existing national policy, reached by wide consultation, and implemented by at least two-thirds of counties, so no constitutional mandate was usurped.
Whether the Union made a case for absorption of ESP staff into permanent and pensionable terms
Yes; following the previous decisions and the Court of Appeal's approval in Grace N. Makori, the Court found and held in favour of the Union
The Court found the issues in this Cause identical to those decided in Grace N. Makori and KNUN v Public Service Commission, with the same facts and law. The Court of Appeal had given the earlier decisions a legal seal of approval, and no reason was advanced to depart from them. The Union had amply demonstrated that the orders sought were merited.
Legal principles established
#- A party that participates in consultations and agrees to resolutions cannot later disown those resolutions and is bound by them
- Courts should not allow parties to resile from obligations freely entered into or lawfully inherited, especially where innocent parties would suffer
- ESP staff were to be absorbed into permanent and pensionable terms at the expiry of their contracts pursuant to national government policy accepted and implemented by the Council of Governors and county governments
Court orders
#- 1.The 1st Respondent ensures that the resolutions arrived at on 11 February 2015 in regard to the absorption of ESP staff are implemented by all its member Counties
- 2.The 2nd and 4th Respondents do immediately confirm all ESP staff serving under contract to be absorbed into permanent and pensionable terms of employment with effect from 11 February 2015
- 3.The 1st, 2nd and 4th Respondents to meet the Union's costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007; County Governments Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Council of Governors, Siaya County Public Service Board & 6 others [2016] KEELRC 1251 (KLR)", Case Analysis (2016). Cause No 169 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1251/eng@2016-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.