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ELRCPartially AllowedCause No. 1063 of 2015 (as stated in the record - 'the Cause')· [2016] KEELRC 1491 (KLR)

Kenya National Union of Nurses v Council of Governors & 6 others [2016] KEELRC 1491 (KLR)

Employment and Labour Relations Court (Industrial Court)
23 March 2016
2,173 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan counties must confirm ESP contract nurses into permanent, pensionable jobs because counties are bound by resolutions their Council of Governors agreed to.

What this practically means

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Executive summary

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The Kenya National Union of Nurses sued the Council of Governors, County Public Service Boards and national government officials claiming that ESP contract nurses employed by the National Government before devolution should be confirmed into permanent and pensionable terms by the County Governments which had taken over the health function. Several Counties had absorbed the staff following letters from the Cabinet Secretary and Principal Secretary, Ministry of Health, and a Consultative Committee resolution of 11 February 2015, but sixteen Counties had not. The claim against the 3rd Respondent was withdrawn and a settlement was reached with the 5th Respondent. The Court, Radido J, held that the Grievants were identified in the Union's annexure, and that the Council of Governors, having participated in and agreed to the February 2015 resolutions, could not disown them; its member Counties were bound. Relying on the Court of Appeal's decision in Muranga County Public Service Board v Grace N. Makori, the Court found the national absorption policy predated devolution and was not an unconstitutional intrusion, and that Counties could not resile from obligations freely entered into. The Court ordered the Council of Governors to ensure implementation of the resolutions and directed the 2nd and 4th Respondents to immediately confirm all ESP staff into permanent and pensionable terms with effect from 11 February 2015. Other prayers were declined, and the 1st, 2nd and 4th Respondents were to meet the Union's costs. Judgment delivered in Nakuru on 23 March 2016.

Key legal issues

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01

Whether the Union's claim failed for non-joinder/naming of the Grievants

Holding

The Grievants were identified in annexure SP-2A to the Memorandum of Claim; the objection failed

Reasoning

The 4th Respondent argued the Union had not named the persons it purported to represent. The Court found the names of the Grievants were set out in the Union's annexure SP-2A in the Memorandum of Claim, so the representation was sufficiently identified and the objection had no merit.

p. 4
02

Whether Counties were bound by the 11 February 2015 Consultative Committee resolutions

Holding

Yes - the Council of Governors participated in and agreed to the resolutions and its members were bound

Reasoning

The Council of Governors is a statutory body which participated in the 11 February 2015 consultations. Even if the National Government's circulars lacked legal effect, participation in and agreement to the resolutions bound the Counties the Council represented. The Court of Appeal had also confirmed that the national policy predated devolution and was not a dictatorial imposition.

p. 4
03

Whether the Respondents were obliged to absorb ESP staff on permanent and pensionable terms

Holding

Yes, following the Court of Appeal's decision in Grace N. Makori, the Counties which had not absorbed the ESP staff were bound to do so

Reasoning

The issues in this Cause were identical to those in the Grace N. Makori litigation, in which the Court of Appeal held that absorption into permanent and pensionable terms at contract expiry was national government policy accepted, adopted and implemented, and Counties could not resile from it to the detriment of innocent parties. The Court found the orders sought merited.

p. 5

Legal principles established

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  • A party to consultations cannot disown resolutions it agreed to; Counties represented by the Council of Governors are bound by such resolutions
  • Where facts and law are identical to previously determined cases approved on appeal, a court should follow those decisions

Court orders

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  1. 1.The 1st Respondent to ensure the resolutions of 11 February 2015 regarding absorption of ESP staff are implemented by all its member Counties
  2. 2.The 2nd and 4th Respondents to immediately confirm all ESP staff serving under contract into permanent and pensionable terms of employment with effect from 11 February 2015
  3. 3.The 1st, 2nd and 4th Respondents to meet the Union's costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 6
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 41
  • Employment Actsection 5
  • County Governments Actsection 63
  • County Governments Actsection 73
  • County Governments Actsection 138

Cases cited (3)

  • Grace N. Makori & Ors v Muranga County Public Service Board
    (2015) eKLR
  • Kenya National Union of Nurses v Public Service Commission
    (2015) eKLR
  • Muranga County Public Service Board v Grace N. Makori & 178 Ors
    (2015) eKLR
Jurisdiction invoked
Jurisdiction under the Employment and Labour Relations Court Act over employment and labour relations disputes (not expressly cited in the extract)

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, "Kenya National Union of Nurses v Council of Governors & 6 others [2016] KEELRC 1491 (KLR)", Case Analysis (2016). Cause No. 1063 of 2015 (as stated in the record - 'the Cause'). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1491/eng@2016-03-23

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