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ELRCDismissedCause No. 2486 of 2016 (consolidated with Cause No. 2479 of 2016)· [2017] KEELRC 1785 (KLR)

The Council of County Governors v Kenya Medical Practitioners Pharmacists and Dentists Union & 10 others [2017] KEELRC 1785 (KLR)

Employment and Labour Relations Court
13 February 2017
6,081 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to review the doctors' union contempt sentence because the officials had already appealed, ending their attempt to pursue both remedies.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court at Nairobi, delivered by Hellen Wasilwa J on 13th February 2017, determines KMPDU's application dated 24th January 2017 seeking review of the Court's orders of 12th January 2017 sentencing the 2nd to 8th Respondents (KMPDU officials) to a one month suspended sentence for contempt of the Court's orders of 1st December 2016 suspending their strike notice. The background was a dispute between the Council of Governors and KMPDU over a 2013 collective bargaining agreement for doctors, in the context of devolution of health services to county governments. The union officials had been found in contempt after the strike commenced despite the suspension order. The Applicants sought review of the sentence, interim suspension of its execution, bail, and orders compelling the Council of Governors and the Ministry of Health not to frustrate negotiations. The opposition contended the application did not meet the review threshold under Section 16 of the ELRC Act and Rule 33 of the 2016 Procedure Rules, that review was barred because the Applicants had already appealed (Appeal No. 9 of 2017), that the Contempt of Court Act 2016 did not apply retrospectively, and that the Applicants had not purged the contempt. The Court framed five issues and held that although it has power under Section 16 of the ELRC Act to review its own orders, that power is unavailable where an appeal has been preferred, citing William Karani; pursuing both remedies amounted to forum shopping. It further held the Contempt of Court Act 2016, having commenced on 13th January 2017, could not apply retrospectively to the sentencing of 12th January 2017. On the merits, the Applicants failed to demonstrate new matter, error apparent on the record, or sufficient cause. The application was dismissed and the suspended sentence was left to crystallize.

Key legal issues

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01

Whether the ELRC has jurisdiction to review its own orders when an appeal on the same orders is pending at the Court of Appeal

Holding

The Court has power to review under Section 16 of the ELRC Act and Rule 33 of the ELRC (Procedure) Rules 2016, but review is only available where no appeal is preferred or allowed; having filed an appeal, the Applicants cannot also pursue review, which is forum shopping.

Reasoning

The Court traced its jurisdiction to Article 162(2) of the Constitution and Section 12 of the ELRC Act, and its review power to Section 16 of the Act and Rule 33 of the 2016 Procedure Rules, which mirror Order 45 Rule 1 of the Civil Procedure Rules. Relying on William Karani, it held that review and appeal cannot be pursued simultaneously; once an appeal is taken, review is ousted and the grievance merges in the appeal.

p. 12
02

Whether the Contempt of Court Act 2016 applies to the applicants' sentencing

Holding

The Contempt of Court Act 2016 does not apply because it came into force on 13th January 2017, whereas the contemnors were sentenced on 12th January 2017; statutes do not apply retrospectively.

Reasoning

The Court found it has inherent power to review its own judgments under the ELRC Act and Civil Procedure Act, a power not ousted by the Contempt of Court Act 2016. However, the Act commenced on 13th January 2017, one day after the sentencing, and invoking Section 9(3) of Cap 2 and Municipality of Mombasa v Nyali, held the law looks forwards and cannot apply retrospectively.

p. 12
03

Whether the Applicants met the threshold for review of the sentencing orders

Holding

The Applicants failed to demonstrate any new and important matter, error apparent on the record, need for clarification or other sufficient cause warranting review.

Reasoning

Although the Court had already found it lacked jurisdiction to review, it addressed the threshold anyway. The Applicants claimed compliance through negotiations but could not explain why they obeyed only part of the orders and failed to call off the strike they themselves called. No sufficient reason for review was shown.

p. 12

Legal principles established

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  • Once an appeal has been preferred against an order, the remedy of review is ousted and the issue sought to be remedied by review merges in the appeal.
  • A court cannot arrogate to itself jurisdiction exceeding that conferred on it by law and must operate within constitutional limits.
  • A statute that came into force after the events in question cannot apply retrospectively.
  • An applicant for review must demonstrate discovery of new and important matter, an error apparent on the face of the record, need for clarification, or other sufficient cause.

Court orders

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  1. 1.The application for review dated 24th January 2017 is dismissed
  2. 2.The Court's orders sentencing the 2nd to 8th Applicants to a one month suspended sentence effective 26th January 2017 are not reviewed and will now crystallize

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 186 and Fourth Schedule
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court ActSection 16
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 33(1)
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Contempt of Court Act, 2016 (No. 46 of 2016)Section 32; commencement date 13th January 2017
  • Interpretation and General Provisions Act (Cap 2)Section 9(3)
  • Labour Relations ActSection 81 (essential services)
  • Intergovernmental Relations Act, No. 2 of 2012
  • Court of Appeal Rules, 2010Rule 75
  • Salaries and Remuneration Commission Regulations

Cases cited (7)

  • Africa Management Communication International Limited vs. Joseph Mathenge Mugo & Others
    Civil Case No. 242 of 2013
  • Johnson vs. Grant
    (1923) SC 789 at 790
  • William Karani and 47 Others vs. Michael Wamalwa Kijana and 2 Others
    Nakuru CA 43 and 153 of 1986
  • The Board of Governors, Moi High School Kabarak & Another vs. Malcolm Bell
    Supreme Court Petitions Nos. 6 and 7 of 2013 (unreported)
  • Municipality of Mombasa vs. Nyali Limited
    (1963) E.A. 371
  • Wamwere vs. Attorney General
    (2004) 1 KLR
  • High Court Civil Case no 45 of 2008 (Machakos) (review application in contempt matter, Hon J Hatari Waweru)
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 and Section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "The Council of County Governors v Kenya Medical Practitioners Pharmacists and Dentists Union & 10 others [2017] KEELRC 1785 (KLR)", Case Analysis (2017). Cause No. 2486 of 2016 (consolidated with Cause No. 2479 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1785/eng@2017-02-13

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