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ELRCPartially AllowedPetition (Nairobi, Employment and Labour Relations Court) – number not stated in judgment· [2018] KEELRC 2126 (KLR)

Public Service Commission & 3 others v Trade Union Congress of Kenya & 5 others [2018] KEELRC 2126 (KLR)

Employment and Labour Relations Court
23 February 2018
MOMAUREEN ONYANGO
2,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Public Service Commission and three Cabinet Secretaries (Labour; Devolution; Education) petitioned the Employment and Labour Relations Court seeking declarations that a notice of industrial action dated 19th June 2015 issued by the Trade Union Congress of Kenya (TUCK) against new NHIF contribution rates was illegal, null and void, that the intended industrial action was unprotected under the Labour Relations Act, and a prohibitory injunction against the strike. The National Hospital Insurance Fund and the Council of Governors were joined as interested parties. TUCK defended the notice as an exercise of the constitutional right to strike under Article 41(2)(d), contending that sections 78(1)(f) and 81(3) of the Labour Relations Act did not meet Article 24 standards. The court, Maureen Onyango J, held that the parties had not addressed the real issue: the validity of the strike notice. Applying the statutory and dictionary definitions of a strike, the court identified five elements of a lawful strike, including an employer/employee relationship and a dispute with the employer. The notice demanded revocation of NHIF rates, yet TUCK had no employment relationship with NHIF, and no evidence showed disputes or failed consultations with the ministries copied on the notice. Further, TUCK had litigated the same subject in Nairobi High Court Petition No. 61 of 2015, and issued the strike notice only four days after the court declined a stay, which the court held was an abuse of court process; the proper remedy was an appeal. The petition succeeded: the notice was declared unlawful, a prohibitory injunction issued against the strike, and no costs were ordered.

Key legal issues

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01

Validity of the strike notice issued by the 1st respondent

Holding

The notice was unlawful as there was no employment relationship or dispute between the 1st respondent and the targeted employers

Reasoning

The court set out the elements of a lawful strike: an employer/employee relationship, lawful demands, attempts to discuss them, disagreement, and an aim of compelling the employer to concede. The notice demanded revocation of NHIF rates, yet there was no employment relationship between the federation and NHIF, and no evidence of meetings or disputes with the ministries to whom the notice was copied.

p. 4
02

Abuse of court process in issuing a strike notice after litigation over the same subject matter

Holding

Issuing the strike notice four days after the High Court declined to suspend the Gazette Notice, while Petition No. 61 of 2015 was pending, was an abuse of court process and of the law

Reasoning

The 1st respondent had litigated the legality of the NHIF rates in High Court Petition No. 61 of 2015, whose application for temporary stay was dismissed on 15th June 2015. Four days later it issued a strike notice seeking the same suspension. The court held the proper course was to appeal, and that the notice was a protest against the court order amounting to abuse of process.

p. 4

Legal principles established

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  • A strike can only be lawful where the definitional elements of a strike are present, including an employer/employee relationship and a dispute with the employer
  • The right to strike under Article 41(2)(d) must be exercised in accordance with the procedural requirements of section 76 of the Labour Relations Act

Court orders

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  1. 1.A declaration that the notice of industrial action dated 19th June 2015 was unlawful
  2. 2.An order of prohibitory injunction restraining the 1st respondent, its officials and/or members from engaging in or participating in the strike called by the notice dated 19th June 2015
  3. 3.No orders for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20(3), 24(1), 24(2), 2(4), 41(2)(d)
  • Labour Relations ActSections 2, 76, 78(1)(f), 81(3)
  • Legal Notice No. 14 of 2015 (NHIF rates, Kenya Gazette Supplement No. 12 of 6th February 2015)Gazette Notice

Cases cited (3)

  • The Kenya Ferry Services Limited V. Dock Workers Union (Ferry Branch)
    Cause No. 338 of 2014
  • TSC V. KNUT
    (2015) eKLR
  • Teachers Service Commission V. Kenya National Union of Teachers
    [2015] eKLR
Jurisdiction invoked
Constitutional petition under the Bill of Rights (Articles 20, 24, 41); specific provision not stated

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 & 3 others v Trade Union Congress of Kenya & 5 others [2018] KEELRC 2126 (KLR)", Case Analysis (2018). Petition (Nairobi, Employment and Labour Relations Court) – number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2126/eng@2018-02-23

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