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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether denial of audience for non-compliance with court orders violated the Applicants' right to a fair hearing and warranted review
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
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.
Whether the finding that the strike was unprotected and unlawful constituted an error apparent on the face of the record
No - the finding was a deliberate judicial determination based on clear statutory provisions
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.
Whether the intended claimant and individual employees should be joined to the suit
No - joinder cannot be forced on a party who has shown no interest, and the employees were represented by their Union
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.
Whether the 4th July 2019 orders and the consequent terminations were null and void for breach of natural justice
No - the decision was valid and the terminations did not emanate from the court order
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.
Whether the application was res judicata and an abuse of process given the Court of Appeal proceedings
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
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.
Legal principles established
#- 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
#- 1.The notice of motion application dated 23rd March 2020 by the 3rd and 4th Respondents was dismissed
- 2.Costs of the application awarded such that each party bears their own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.