The Council of County Governors v Kenya Medical Practitioners Pharmacists and Dentists Union & 10 others [2017] KEELRC 1785 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction to review its own orders when an appeal on the same orders is pending at the Court of Appeal
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.
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.
Whether the Contempt of Court Act 2016 applies to the applicants' sentencing
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.
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.
Whether the Applicants met the threshold for review of the sentencing orders
The Applicants failed to demonstrate any new and important matter, error apparent on the record, need for clarification or other sufficient cause warranting review.
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.
Legal principles established
#- 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
#- 1.The application for review dated 24th January 2017 is dismissed
- 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
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya 2010 and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hosea Sitienei & another v University of Eldoret & 11 others [2019] KEELRC 2582 (KLR)[2019] KEELRC 2582 (KLR)24 Oct 2019
Cite this brief
#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.