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ELRCAllowedNot stated in the excerpt· [2016] KEELRC 1815 (KLR)

Public Service Commission & 4 others v Trade Union Congress of Kenya & 4 others [2016] KEELRC 1815 (KLR)

Employment and Labour Relations Court
22 January 2016
MNMathews Nderi Nduma
473 words in judgment
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The bottom line

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Kenya's Employment and Labour Relations Court stopped a teachers' strike, holding the right to strike must follow the Labour Relations Act's procedures.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi, delivered by Mathews Nderi Nduma, Principal Judge, on 22nd January 2016, on a notice of motion dated 2nd July 2015 in a petition. Interim orders in prayers 1 to 3 had already been granted ex parte; prayers 4 and 5, seeking a temporary injunction restraining the respondents from commencing or participating in any form of industrial action pending the hearing and determination of the petition, remained for determination. The applicants relied on grounds and supporting affidavits sworn by Simon K. Rotich, Amb. Rachel Omamo and Nancy Macharia, and were supported by the 1st interested party; the application was opposed by the 3rd respondent's replying affidavit and written submissions by the 1st and 3rd respondents. The court framed one issue: whether the applicants met the Giella v Cassman Brown threshold for an interlocutory injunction. It found the applicants had established an arguable case that the respondents failed to comply with Part X of the Labour Relations Act, particularly sections 76, 77 and 78, governing the calling of strikes and lock-outs, and therefore a prima facie case with probability of success. The court held that while a protected strike is a constitutional right under Article 41 and ILO Conventions 87 and 89, that right must be exercised within statutory guidelines, failing which the Act would be rendered otiose. The second and third Giella limbs also favoured the applicants. The court expressly refrained from deciding the merits, which awaited full hearing, and granted the application with costs in the cause.

Key legal issues

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01

Whether a prima facie case with probability of success was established

Holding

Yes - the applicants demonstrated an arguable case that the respondents did not comply with Part X of the Labour Relations Act regulating strikes and lock-outs

Reasoning

The court applied the Giella v Cassman Brown test. On the first limb, the applicants showed non-compliance with sections 76, 77 and 78 of the Labour Relations Act governing the calling of strikes. That finding alone was held sufficient to warrant the grant of the temporary injunction in prayers 4 and 5 pending full hearing of the petition.

p. 2
02

Balance of convenience and irreparable injury

Holding

The second and third Giella considerations favoured granting the interim relief

Reasoning

Having found a prima facie case, the court briefly considered the remaining limbs and held both favoured the applicants. The court expressly declined to determine the merits of the petition, reserving those for full hearing.

p. 2

Legal principles established

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  • The right to strike must be exercised within the statutory guidelines of the Labour Relations Act

Court orders

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  1. 1.Temporary injunction restraining the respondents from commencing and participating in any form of industrial action pending the hearing and determination of the petition, in terms of prayers 4 and 5 of the notice of motion
  2. 2.Application granted with costs in the cause
Jurisdiction invoked
Not stated in the excerpt; petition before the Employment and Labour Relations Court under Part X of the Labour Relations Act framework

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, "Public Service Commission & 4 others v Trade Union Congress of Kenya & 4 others [2016] KEELRC 1815 (KLR)", Case Analysis (2016). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1815/eng@2016-01-22

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