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ELRCStruck OutNot stated in judgment (Petition filed 23rd October 2019; Re-Amended Petition dated 8th June 2020)· [2020] KEELRC 37 (KLR)

Kenya National Union of Nurses v County Government of Kirinyaga & 6 others [2020] KEELRC 37 (KLR)

Employment and Labour Relations Court
24 September 2020
5,488 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a nurses' petition because an appeal over the same dismissals was already pending before the Public Service Commission, so the statutory route had to be exhausted first.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri determines two preliminary objections raised against the Petitioner's Petition, which challenged the dismissal of nurses employed by the 4th Respondent (Kirinyaga County Public Service Board) on behalf of the Kirinyaga County Government. The 5th and 6th Respondents objected that the Court lacked jurisdiction because an appeal under Section 77 of the County Governments Act was pending before the Public Service Commission (7th Respondent), that the Re-Amended Petition was premature, and that the parallel proceedings amounted to forum shopping. The 4th Respondent objected that the Petition was fatally defective, premature and misconceived for breach of Article 234(2)(i) of the Constitution and Section 77(1) of the County Governments Act, the Petitioner having not appealed to the PSC before instituting the suit. The Petitioner countered that Section 77 is discretionary ('may'), that its members' appeals filed on 25th October 2019 had not been heard for over nine months, and that the Court had jurisdiction over alleged violations of Articles 47, 50(1) and 48. The Court upheld the exhaustion doctrine, holding that where a statute provides a dispute resolution mechanism that forum must be approached first, and noting that an appeal was in fact pending before the PSC. The Petition was struck out and the Petitioner ordered to pay costs of the objections to the 4th and 5th-6th Respondents. The Petitioner's objection to the advocates on record was dismissed as unmerited.

Key legal issues

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01

Whether the Court has jurisdiction where an appeal under Section 77 of the County Governments Act is pending before the Public Service Commission

Holding

The Court struck out the Petition, holding that the exhaustion doctrine required the Petitioner to pursue the statutory remedy before the PSC, especially as an appeal was already pending there

Reasoning

The Court accepted the Respondents' position that where a statute provides a dispute resolution mechanism, that forum must be approached first, with appeals or review thereafter lying to the Superior Court. The exhaustion doctrine frowns on parties who bypass statutory mechanisms and appear to forum shop. It was not disputed that an appeal was already pending before the PSC. Since the Petition was not an appeal against the decision in that pending appeal, but a parallel proceeding, the Court struck it out and awarded costs to the objecting Respondents.

p. 6
02

Whether the advocates on record were properly on record

Holding

The Court dismissed the Petitioner's argument on representation as unmerited, noting Wanyonyi & Muhia Advocates had filed a notice of change of advocates

Reasoning

The Petitioner had initially sued the County Government of Kirinyaga and two Cabinet Secretaries; the suit against the County Government spawned the 4th, 5th and 6th Respondents, initially represented by Waweru Gatonye & Co. Advocates. Wanyonyi & Muhia Advocates took over conduct of the suit for the 4th Respondent and filed a notice of change of advocates. The Court held the Petitioner's representation objection was unmerited and dismissed it, treating the issue as one the Petitioner itself created by splitting the case.

p. 6

Legal principles established

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  • Where a statute provides a dispute resolution mechanism, that forum should be approached first before resort to the Superior Court, and the exhaustion doctrine frowns on forum shopping

Court orders

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  1. 1.The Petition is struck out
  2. 2.The Petitioner to pay costs of the objections to the 4th and 5th-6th Respondents
  3. 3.The Petitioner's argument on representation is dismissed

Authorities

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Legislation

  • County Governments ActSection 77(1), 77(2)
  • Constitution of Kenya, 2010Articles 22(1), 23, 47, 48, 50(1), 159(2)(c), 162(2)(a), 165(5), 233, 234(2)(i)
  • Fair Administrative Actions Act, No. 4 of 2015Sections 9(2), (3) and (4)
  • Public Service Commission (County Government Public Services Appeals Procedures) Regulations, 2016Rules 7, 8(c)
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations ActSection 12
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Human Resource Manual Guidelines and Procedure RegulationsSections K2.2(i), K.3 paragraph 4

Cases cited (17)

  • Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille
    [2017] eKLR
  • Owners of Marine Vessel Lilian 'S' v Caltex Oil (K) Ltd
    [1989] KLR 1
  • Hezron Mwambia Karong'a v Tharaka Nithi County Government & Another
    [2019] eKLR
  • Republic v Secretary County Public Service Board ex parte Hulbai Gedi Abdille
  • Speaker of the National Assembly v Karume
    [2008] KLR
  • James Akelerio Alias Muguu & Another v Moses Kasaine Lenolkilal & 3 others
    [2014] eKLR
  • James Tinai Murete & others v County Government of Kajiado & Another; Nailantei Supeyo & 19 others [Interested Parties]
    [2015] eKLR
  • Iway Africa Limited v Infonet Africa Limited & Another
    [2019] eKLR
  • Sunrise Properties Ltd v Fifty Investments Limited & Another
    [2007] eKLR
  • Basheshar Noth v The Commissioner of Income Tax, Delhi and Rajasthan
    (1959) Supp. 1. S.C.R. 528
  • Joel Ndung'u Bedan v Principal Secretary Ministry of Interior & Coordination of National Government & Another
    [2020] eKLR
  • Karisa Chengo & 2 Others v Republic
    [2015] eKLR
  • Abdikadir Suleiman v County Government of Isiolo & Another
    [2015] eKLR
  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
    (1969) E.A
  • Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA Workers) v Registered Trusted of East African Ramgarhia Board t/a Guru Nanak Ramgrhia Sikh Hospital
    [2020] eKLR
  • James Kamangu Ndimu v Margaret Wanjiru Ndimu & Another
    [2007] eKLR
  • Joseph Kipkemboi Tanui v Chief of Defence Forces & 2 Others
    [2019] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act (disputed); objections founded on Article 234(2)(i) of the Constitution and Section 77(1) of the County Governments Act, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya National Union of Nurses v County Government of Kirinyaga & 6 others [2020] KEELRC 37 (KLR)", Case Analysis (2020). Not stated in judgment (Petition filed 23rd October 2019; Re-Amended Petition dated 8th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/37/eng@2020-09-24

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