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ELRCDismissedCause No. 1069 of 2017· [2018] KEELRC 1570 (KLR)

Biiy v Panyako & 5 others; Ministry of Health & another (Interested Parties) (Cause 1069 of 2017) [2018] KEELRC 1570 (KLR)

Employment and Labour Relations Court of Kenya
11 June 2018
HWHellen Wasilwa
4,219 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 dismissed the nurses' union's attempt to reopen a strike ruling, warning that disagreeing with a judge is an appeal, not a review.

What this practically means

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Executive summary

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The 6th Respondent, the Kenya National Union of Nurses, filed a Notice of Motion on 5/12/2017 under Rules 33(1)(a) and (b) of the Employment & Labour Relations Court (Procedure) Rules 2016 seeking review of the ruling delivered by Hellen Wasilwa J on 1/9/2017 in Cause No. 1069 of 2017. The applicant sought an order setting aside and expunging the entire ruling and the names of the 1st to 6th Respondents from the court records. It argued that the ruling erred in treating the Claimant's (the union Chairman's) presence at the National Governing Council/NEC meeting that issued the 21-day strike notice as mandatory, relying on the union constitution (quorum and convening provisions) and the Labour Relations Act 2007; that the strike had been suspended, not called off, under a Negotiated Agreement with the National and County Governments; that a strike resumption notice was issued; and that the order reinstating the Claimant to the CBA negotiating team contravened the union constitution, which vests representation of the union in the General Secretary. The Claimant and the 2nd Interested Party opposed, contending there was no discovery of new matter and that the application was an appeal in disguise. Wasilwa J reviewed the Rule 33 grounds for review, noted the strike issue had been overtaken by events, the strike having been called off, and that the Court had already pronounced itself on the Claimant's absence from the NEC meeting. Holding the application to be without merit and in substance an appeal disguised as a review, the Court dismissed it, with costs in the cause.

Key legal issues

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01

Whether the ruling of 1/9/2017 should be reviewed under Rule 33 of the ELRC (Procedure) Rules 2016

Holding

The application for review is dismissed; no merit in it

Reasoning

The Court identified the Rule 33 grounds for review: error on the face of the record, discovery of new and important matter, or where the judgment requires clarification. The strike issue had been overtaken by events as the strike was called off. The issue whether the Claimant sat on the NEC meeting that called the strike was spent, the Court having already pronounced itself on it. The applicant's complaints merely re-opened findings already made, amounting to an appeal disguised as a review, and the application was dismissed.

p. 11
02

Whether the strike issue warranted review

Holding

Nothing to review; the strike had already been called off

Reasoning

The 1/9/2017 ruling had declared the strike illegal and ordered it called off, injuncted interference with health care services, and ordered the Claimant's reinstatement to the CBA negotiating table. By the time of the review application the strike had ended, so the review sought on that issue was spent. Similarly, the claimant's alleged non-attendance at the NEC meeting was already decided; a review is not a vehicle to re-litigate findings a party considers wrong.

p. 11

Legal principles established

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  • A party aggrieved by a ruling must show one of the Rule 33 grounds (new and important matter, error apparent on the face of the record, need for clarification, or other sufficient reason); re-arguing findings one disagrees with is an appeal, not a review

Court orders

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  1. 1.The Notice of Motion dated 5/12/2017 for review of the ruling of 1/9/2017 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment & Labour Relations Court (Procedure) Rules 2016Rule 33(1)(a) and (b)
  • Labour Relations Act 2007Section 2 (definition of authorized representative)
  • Labour Relations Act 2007Section 21
  • Labour Relations Act 2007Section 73(3)
  • Labour Relations Act 2007Section 76(c)
  • Constitution of Kenya, 2010Article 41(2)(d) and 41(4)
  • Constitution of Kenya, 2010Article 50(2)(j)

Cases cited (1)

  • Jophinus Musundi & 7 others - National Executive Council Committee Members [acting for Kenya National Union of Nurses] v Seth Panyako
    Cause No. 866 of 2014
Jurisdiction invoked
Rule 33(1)(a) and (b) of the Employment & Labour Relations Court (Procedure) Rules 2016 - application for review of the Court's own ruling dated 1/9/2017

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, "Biiy v Panyako & 5 others; Ministry of Health & another (Interested Parties) (Cause 1069 of 2017) [2018] KEELRC 1570 (KLR)", Case Analysis (2018). Cause No. 1069 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1570/eng@2018-06-11

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