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ELRCDismissedNot stated in the judgment (ELRC Cause; application dated 23rd March 2020)· [2020] KEELRC 72 (KLR)

County Government of Kirinyaga & another v Kenya Medical Practitioners, Pharmacists & Dentists Union & 3 others; Cabinet Secretary, Labour and Social Protection & another (Interested Parties) [2020] KEELRC 72 (KLR)

Employment and Labour Relations Court
23 September 2020
7,322 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo earlier orders because the unions had disobeyed them - court orders must be obeyed, not ignored.

What this practically means

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Executive summary

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The 3rd and 4th Respondents (trade unions) moved the Employment and Labour Relations Court at Nyeri by notice of motion dated 23rd March 2020 seeking review and setting aside of the orders made on 4th July 2019, a hearing de novo of the parties' earlier motions, joinder of the Kirinyaga County Public Service Board as 2nd Claimant and of 209 individual employees as intended Respondents/Counter-claimants, quashing of the employees' termination letters dated 8th July 2019, and payment of their salaries and allowances from 1st June 2019. They argued they were denied audience before the 4th July 2019 ruling because of alleged contempt they were never charged for, contrary to natural justice and Articles 10, 41, 48 and 50 of the Constitution, relying on Maharaj v Attorney General and other authorities. The Claimant opposed, filing a preliminary objection that the application was res judicata given the Court of Appeal's decision in Civil Application No. 270 of 2019, an abuse of process, and failing the review threshold. Nzioki wa Makau J held that a party that wilfully disobeys court orders cannot invoke the right to be heard to escape the consequences of that disobedience; the 4th July 2019 finding that the strike was unprotected was a lawful determination, not an error apparent on the face of the record; joinder cannot be forced on a party with no interest in the suit; and the employees were heard through their Union. The decision of 4th July 2019 was neither null nor void, and the Court could not reverse the binding Court of Appeal decision. The motion was dismissed, with the closing order directing each party to bear their own costs.

Key legal issues

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01

Whether denial of audience for non-compliance with court orders violated the Applicants' right to a fair hearing and warranted review

Holding

No - the denial of audience was justified because the Applicants had not purged their contempt; the right to a fair hearing under Article 24 (as pleaded by the Applicants) is not absolute

Reasoning

The Court held that a party who wilfully disobeys court orders cannot invoke the rule of law and the right to be heard to escape the consequences of its own disobedience. The exclusion of the Applicants' counsel followed their non-compliance with the orders of 24th and 29th May 2019. The ruling of 4th July 2019 was a lawful determination on the merits, not an error or oversight, and the Court of Appeal had already affirmed that failure to purge contempt was a good reason the Applicants were not heard.

p. 6
02

Whether the finding that the strike was unprotected and unlawful constituted an error apparent on the face of the record

Holding

No - the finding was a deliberate judicial determination based on clear statutory provisions

Reasoning

The Applicants argued the ruling rested on a mistake or oversight because the Court found their members were essential service providers exempted from striking. The Court held this was a considered finding based on the clear provisions of Section 78 of the Labour Relations Act, not an error. The decisions of other judges of the court relied on by the Applicants (Okiya Omtatah Okoiti and Kenya Ferry Services) were merely persuasive and did not bind it.

p. 6
03

Whether the intended claimant and individual employees should be joined to the suit

Holding

No - joinder cannot be forced on a party who has shown no interest, and the employees were represented by their Union

Reasoning

The Court held that the legislature's intention in allowing joinder did not extend to forcing amendment of pleadings to add a claimant who had not sought to be enjoined. A party cannot be forced to sue. The dismissed employees were given a chance to be heard through their Union, which declined to file documents and disobeyed court orders, so their right to be heard was not denied. Allegations of unlawful termination must be pursued in a separate suit.

p. 6
04

Whether the 4th July 2019 orders and the consequent terminations were null and void for breach of natural justice

Holding

No - the decision was valid and the terminations did not emanate from the court order

Reasoning

The Applicants argued that the order denying them audience was a nullity under Macfoy v United Africa Company and that the terminations flowed from a void order. The Court found the 4th July 2019 decision was neither null nor void, and the dismissal letters were issued on the ground of absconding from work, not pursuant to the court's orders. No charges for contempt were required because the Court had not heard a contempt claim against the individual officers.

p. 6
05

Whether the application was res judicata and an abuse of process given the Court of Appeal proceedings

Holding

The Court did not decide res judicata as a ratio but noted it could not reverse the Court of Appeal, whose decision in Civil Application No. 270 of 2019 is binding

Reasoning

The Claimant raised a preliminary objection that the application was res judicata given the Court of Appeal's determination in Civil Appeal/Application No. 270 of 2019. While the Court did not expressly rule on the preliminary objection, it observed obiter that it is incapable of reversing a Court of Appeal decision and that the Court of Appeal decision was binding, since there was no evidence the contempt had been purged. It also noted the purported withdrawal from the appeal was not filed in the Court of Appeal.

p. 6

Legal principles established

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  • A party who deliberately disobeys court orders and is denied audience cannot seek review of a decision made in their deliberate absence
  • Court orders are mandatory, not optional suggestions
  • The right to be heard does not extend to forcing the joinder of a party who has shown no interest in the suit
  • A first-instance ruling of the Court stands as the determination in the matter until reversed on appeal
  • A trial court cannot overturn a decision of the Court of Appeal

Court orders

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  1. 1.The notice of motion application dated 23rd March 2020 by the 3rd and 4th Respondents was dismissed
  2. 2.Costs of the application awarded such that each party bears their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23, 24, 25, 29, 30, 41, 48, 50, 162
  • Civil Procedure RulesOrder 1 Rule 10; Order 53 Rule 3
  • Court of Appeal RulesRule 75
  • Employment and Labour Relations Court (Procedure) RulesRule 33
  • Labour Relations ActSections 62-65, 78, 81
  • Employment ActSection 41
  • County Governments ActSections 59, 77
  • Court of Appeal Practice Direction, 2015Rule 8 (Withdrawal of Appeals or Applications)

Cases cited (15)

  • James Ndungu Wambu v Republic & 7 Others
    [1995] eKLR
  • Maharaj v Attorney General
    (1977) 1 All ER 411
  • Shah v Mbogo
    (1968) EA 93
  • Okiya Omtatah Okoiti v Attorney General & 5 Others
    [2015] eKLR
  • The Kenya Ferry Services Ltd v Dock Workers Union (Ferry Branch)
    [2014] eKLR
  • County Government of Nyeri & Another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Draft and Develop Engineers Limited v National Water Conservation and Pipeline Corporation
    [2014] eKLR
  • Board of Governors, Moi High School Kabarak v Malcom Bell & Another
    [2013] eKLR
  • Mapala v British Broadcasting Corporation
    [2002] 1 EA 132 (CAT)
  • Nyamogo and Nyamogo Advocates v Moses Kipkolun Kogo
    (2001) 1 EA 173
  • Macfoy v United Africa Company Ltd
    (1961) 3 All ER 1179
  • R v Chief Justice of Kenya & 6 Others Ex-parte Moijo Mataya Ole Keiwua
    [2010] eKLR
  • Felix Marete Njagi v Attorney General
    [1987] KLR 690
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors
    (1968) EA 696
  • Amos Kabiru Kimemia v Industrial & Commercial Development Corporation
    [2008] eKLR
Jurisdiction invoked
Rule 33 of the Employment and Labour Relations Court (Procedure) Rules; inherent jurisdiction of the Court under Article 162 of the Constitution; Article 23 remedies invoked by the Applicants

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, "County Government of Kirinyaga & another v Kenya Medical Practitioners, Pharmacists & Dentists Union & 3 others; Cabinet Secretary, Labour and Social Protection & another (Interested Parties) [2020] KEELRC 72 (KLR)", Case Analysis (2020). Not stated in the judgment (ELRC Cause; application dated 23rd March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/72/eng@2020-09-23

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