Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedRCA. 241 of 2017 (application dated 29/11/2019)· [2020] KEELRC 744 (KLR)

Kenya Medical Practitioners Pharmacists & Dentists Union (KMPDU) v County Government of Kisumu [2020] KEELRC 744 (KLR)

Employment and Labour Relations Court
14 July 2020
MNMathews N. Nduma
1,530 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kisumu County lost: the court found it violated its agreement with doctors, declared their strike protected, but ordered them back to work during COVID-19.

What this practically means

#

Executive summary

#
The applicant union applied on 29 November 2019 seeking full compliance by the respondent county government with a Collective Bargaining Agreement effective 1 July 2017 (registered as RCA. 241 of 2017) and a Return to Work Formula of 24 June 2019, both adopted as orders of the court, and a declaration that any strike called over non-compliance would be lawful and protected. The respondent admitted the dispute centred on promotion of 126 doctors and payment of arrear salaries backdated to 1 July 2019, contending that promotions had been effected and arrears budgeted for in the 2020/2021 financial year, and that doctors, being an essential service under the Labour Relations Act, could not lawfully strike. The court framed two issues: compliance with the CBA and RTWF, and entitlement to the reliefs sought. It found the respondent in wilful disregard of the consent order for failing to seek condonation for non-compliance, lacking good faith and clean hands, but noted belated promotions and budgetary provision for arrears. Holding that workers cannot be held to servitude by a defaulting employer and that the right to strike is constitutionally protected subject to Article 24 limitations, the court declared the strike protected. However, weighing the COVID-19 pandemic and the life-and-death importance of medical services, it directed the doctors to return to work by 16 July 2020, ordered issuance of promotion letters to the 126 doctors, payment of arrears by 30 August 2020, and costs to the applicant.

Key legal issues

#
01

Compliance with the CBA and RTWF adopted as court orders

Holding

The respondent had not fully complied: promotion letters were outstanding for some doctors and arrear salaries backdated to 1/7/2019 remained unpaid

Reasoning

The respondent admittedly failed to pay arrear salaries and did not issue promotion letters to 13 doctors said not to meet qualifications. It did not seek condonation for the delay. The court found lack of good faith and clean hands, but noted belated promotion of qualifying doctors and budgetary provision for arrears by 30th August 2020.

p. 2
02

Status of the doctors' strike

Holding

The strike was protected, the union having satisfied all procedural requirements

Reasoning

Although doctors are an essential service under sections 78(1) and 81(3) of the Labour Relations Act, the court held the constitutional right to strike cannot be denied, and the union had complied with procedural requirements before embarking on the strike. The court nonetheless directed a return to work in the public interest of the COVID-19 pandemic response.

p. 3
03

Whether the court should endorse the strike after the fact

Holding

The court declined to endorse continuation of the strike, directing doctors to return to work

Reasoning

The court weighed the doctors' right to withdraw labour against the overriding public interest in medical services during the COVID-19 pandemic, where withdrawal of medical services is a matter of life and death. Finding the respondent had belatedly promoted qualifying doctors and budgeted for arrears, the court directed the doctors to call off the strike and return to work by 16th July 2020 pending full compliance.

p. 2

Legal principles established

#
  • Employers are bound by the terms of CBAs and RTWFs they enter into; workers have a constitutional right to withdraw services to compel a defaulting employer to comply
  • The right to strike may be limited under Article 24 of the Constitution; statutory exceptions cannot override the constitutional right except as to non-payment of wages for protected strikes and discipline for unprotected strikes
  • A party unable to comply with a consent order/RTWF must return to court for condonation and enlargement of time; failure to do so amounts to wilful disregard of the order

Court orders

#
  1. 1.The applicants are engaged in a protected strike having satisfied all procedural requirements prior to taking the drastic action
  2. 2.The respondent to provide promotion letters to all the 126 doctors the subject of this suit who have satisfied the requirements for such promotion
  3. 3.The respondent to pay all arrear salaries due and owing to the promoted doctors back dated from 1st July 2019 on or before 30th August 2020
  4. 4.All the doctors to return to work on or before Thursday 16th July 2020
  5. 5.Respondent to pay costs of the suit

Authorities

#

Legislation

  • Labour Relations Actsection 78(1) and 81(3)
  • Constitution of Kenya 2010Article 24
  • Constitution of Kenya 2010Article 159(2)(d)
  • Constitution of Kenya 2010Article 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1
Jurisdiction invoked
Original/jurisdiction under Labour Relations Act 2007 over a registered Collective Bargaining Agreement and Return to Work Formula adopted as orders of the court; Article 159(2)(d) and Article 48 of the Constitution invoked for virtual delivery

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kenya Medical Practitioners Pharmacists & Dentists Union (KMPDU) v County Government of Kisumu [2020] KEELRC 744 (KLR)", Case Analysis (2020). RCA. 241 of 2017 (application dated 29/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/744/eng@2020-07-14

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