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ELRCAllowedPetition No. 86 of 2017· [2018] KEELRC 2005 (KLR)

Okiya Omtatah Okoiti v Ministry of Health & 5 others [2018] KEELRC 2005 (KLR)

Employment and Labour Relations Court
5 April 2018
RSRadido Stephen
1,192 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 ruled that the National Quality Control Laboratory must join a petition over its employees' conduct, since it is their legal employer.

What this practically means

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Executive summary

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This is Ruling No. 3 in Petition No. 86 of 2017 before the Employment and Labour Relations Court at Nairobi (Radido Stephen, Judge). The Petitioner, Okiya Omtatah Okoiti, had petitioned alleging that the Ministry of Health and the Public Service Commission violated the Constitution by failing to take disciplinary action against Dr. Hezekiah Chepkwony and Dr. Pius Wanjala, and that the two officers created a hostile work environment for employees of the National Quality Control Laboratory. The National Quality Control Laboratory, an Intended Interested Party, applied by notice of motion filed 26 January 2018 to be enjoined as a party to the suit, contending that the Petition concerned the conduct of the 4th and 5th Respondents in their duties at the Laboratory where they served as Director and Deputy Director, and that its joinder was necessary for the expeditious determination of the real matters in dispute. The Petitioner did not oppose joinder (though not as a Respondent), while the 1st to 3rd Respondents opposed, arguing the dispute was disciplinary and within the province of the Public Service Commission, and that joinder would add no value and only cause delay. The Court examined sections 35D to 35G of the Pharmacy and Poisons Act, Cap 244, and found the Laboratory a juristic person whose Board of Management holds disciplinary control over employees, making it the legal employer under section 2 of the Employment Act and a necessary party. The Court allowed the application, joining the Laboratory as the 6th Respondent, but conditioned its participation on the filing of a Board of Management resolution within the stipulated time, failing which the Petition proceeds without it. Costs were awarded in the cause.

Key legal issues

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01

Whether the National Quality Control Laboratory is the legal employer with disciplinary control over the 4th and 5th Respondents

Holding

The Court found the Laboratory established under sections 35D and 35E of the Pharmacy and Poisons Act as a juristic person, and that its Board of Management holds the disciplinary mandate over employees, making it the legal employer under section 2 of the Employment Act.

Reasoning

The Court examined the statutory framework establishing the Laboratory and the functions of its Board of Management, which include making regulations governing appointment, conduct and discipline of employees and administering terms and conditions of service. On that basis it concluded the Laboratory bears direct responsibility over the allegations in the Petition and is a necessary party.

p. 3
02

Whether joinder should be conditional on the Board of Management's own decision

Holding

Although the Court found the Laboratory a necessary party, it made the joinder conditional, requiring the Board of Management to file a resolution authorising participation, failing which the Petition proceeds without it.

Reasoning

The Court reasoned that because the disciplinary mandate vests in the Board of Management rather than the Laboratory's other organs, it is the Board which ought to make the decision as to joinder into the proceedings. The Court therefore allowed the joinder but required the Director, as Secretary of the Board, to file a Board resolution, with a default clause permitting the Petition to proceed without the Laboratory's participation.

p. 3

Legal principles established

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  • An entity established by statute as a juristic person with disciplinary control over employees under the Employment Act is a necessary party where the Petition impugns conduct arising in the course of their official duties.

Court orders

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  1. 1.The Intended Interested Party is joined into these proceedings as the 6th Respondent
  2. 2.The Intended Interested Party to file and serve all relevant papers consequent upon the Petition within 14 days
  3. 3.The Director, in his capacity as the Secretary of the Board of Management, to file with the Court a copy of the Board resolution to join the proceedings
  4. 4.In default of compliance with filing the Board resolution, the Petition to proceed without participation of the Intended Interested Party
  5. 5.A date to be fixed for further directions
Jurisdiction invoked
Articles 19, 20, 22(1) & (2)(a), 23, 162(2)(a), 165(5)(b) and 258(1) & (2) of the Constitution of Kenya, 2010

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, "Okiya Omtatah Okoiti v Ministry of Health & 5 others [2018] KEELRC 2005 (KLR)", Case Analysis (2018). Petition No. 86 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2005/eng@2018-04-05

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