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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 756 (KLR)

Kenya National Union of Nurses v Council of Governors & another [2019] KEELRC 756 (KLR)

Employment and Labour Relations Court of Kenya
30 September 2019
HWHellen Wasilwa
2,483 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court suspended a Council of Governors circular disciplining striking nurses because county staff discipline belongs to County Public Service Boards, not the Council of Governors.

What this practically means

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Executive summary

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This was a Notice of Motion dated 15th February 2019, filed by a nurses' trade union under Rule 17(1) & (3) of the Employment and Labour Relations Court (Procedure) Rules, 2016, seeking urgent interim orders to stay and restrain implementation of a circular (Ref. COG/6/40/IB Vol. 6(68)) dated 11th February 2019 issued by the Council of Governors' Chief Executive Officer to all 47 Governors. The circular, arising from a consultative meeting between the Council of Governors, the Ministry of Health and the Ministry of Labour and Social Protection, directed counties to take disciplinary measures against striking nurses, issue show cause letters, and withhold their salaries and trade union dues remittances. The union contended that the three entities have no mandate over employment and discipline of county government nurses, which vests exclusively in the County Public Service Boards under Section 59(1)(c) of the County Government Act, and that withholding union dues contravenes Article 41 of the Constitution and Sections 48 and 52 of the Labour Relations Act. The Respondents opposed through grounds of opposition and submissions, relying on employer management prerogative and authorities including Dennis Nyagaka Ratemo, Rose W. Kiragu and Anthony Francis Wareheim, and also sought dismissal of the claim against the 2nd Respondent. The court framed the principal issue as whether the Applicant had established a prima facie case with likelihood of success. Holding that the Council of Governors and the Ministry of Health lack jurisdiction over disciplinary matters of county staff, Lady Justice Hellen Wasilwa found the circular had no force of law, stayed it in the interim pending determination of the main claim, and ordered costs in the cause.

Key legal issues

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01

Whether the Applicant established a prima facie case with likelihood of success

Holding

Yes - the Council of Governors and the Ministry of Health lack jurisdiction over disciplinary matters of county government employees, which vests in the County Public Service Boards

Reasoning

The court found that the Council of Governors is not the employer of the claimant's members and cannot issue specific circulars directing disciplinary measures against them. The County Governments Act vests hiring, discipline and human resource functions of county employees in the County Public Service Boards under Section 59(1)(c). At the national level, disciplinary jurisdiction rests with the Public Service Commission, not the Ministry of Health. The circular was therefore ultra vires and without force of law, warranting interim stay.

p. 4
02

Whether interim conservatory/stay orders should issue

Holding

Yes - the offending circular was stayed in the interim pending hearing and determination of the main claim

Reasoning

Having found a prima facie case on the ultra vires character of the circular, and the claimant having invoked the Giella v Cassman Brown thresholds including irreparable prejudice not compensable by damages, the court found the prayers warranted and stayed the circular in the interim pending determination of the main claim.

p. 4

Legal principles established

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  • The Council of Governors has no jurisdiction to issue directives on disciplinary matters affecting county government staff; that function vests in the County Public Service Boards under Section 59(1)(c) of the County Government Act
  • A circular by the Council of Governors directing County Governors on disciplinary action against county staff has no force of law

Court orders

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  1. 1.The offending circular Ref. No. COG/4/40/1B Vol.6 (68) dated 11th February 2019 is stayed in the interim pending hearing and determination of the main claim
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(1) & (3)
  • Labour Relations ActSections 48(1), (2)(a), (b)(i) and (ii), 52, 79(6), 80(1)(a)
  • County Government ActSection 59(1)(c)
  • Constitution of Kenya, 2010Article 41
  • Intergovernmental Relations ActSection 20(c)
  • Employment ActNot specified (referenced generally)
  • Industrial Court ActNot specified (referenced generally)
  • Employment and Labour Relations ActSection 76 sub-section 6

Cases cited (5)

  • Giella Vs Cassman Brown Co. Ltd
  • Dennis Nyagaka Ratemo Vs Kenya Film Classification & Another
    (2014) eKLR
  • Professor Gitile J. Naituli Vs University Council, Multimedia University of Kenya
    Industrial Court Cause Number 1200 of 2012 (Unreported)
  • Rose W. Kiragu Vs Teachers Service Commission
    (2016) eKLR
  • Anthony Francis Wareheim T/a Wareham & 2 others Vs Kenya Post Office Savings Bank
    (2004) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 17(1) & (3)

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, "Kenya National Union of Nurses v Council of Governors & another [2019] KEELRC 756 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/756/eng@2019-09-30

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