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ELRCPartially AllowedApplications dated 5th June 2020 and 11th June 2020 (Notice of Motion)· [2020] KEELRC 849 (KLR)

County Government of Kisumu & another v Kenya Union of Clinical Officers & 3 others;Cabinet Secretary-Labour & Social Protection(Interested Party) [2020] KEELRC 849 (KLR)

Employment and Labour Relations Court
24 June 2020
1,965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kisumu health workers were ordered back to work by 26 June 2020, but the county had to pay all salary arrears by 30 July 2020 or the strike could resume.

What this practically means

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Executive summary

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The County Government of Kisumu filed twin notices of motion seeking a declaration that a strike by health workers was illegal under the Labour Relations Act (health workers being essential workers) and an order compelling the workers, who had downed tools on 9th June 2020, to return to work. The respondents, led by the Kenya National Union of Nurses, opposed the applications, arguing that the applicants had not complied with a consent order of 30th January 2020 providing for promotions with effect from 1st July 2019, payment of salary increments and arrears, and that the consent order expressly allowed resumption of industrial action upon default. The court, framed two issues: entitlement to a mandatory injunction in a public law dispute and the reliefs to be granted. Applying the Gatirau Peter Munya decision on conservatory orders, it found the applicants had substantially complied by effecting promotions and factoring salaries into the June 2020 payroll, but had not been candid about budgeting for arrears and had not demonstrated inherent merit for a mandatory injunction. It declined to set aside the consent order absent grounds such as fraud, mutual mistake, illegality or force majeure. Balancing the public interest in health services during the COVID-19 pandemic, the court ordered all health workers to resume work by 26th June 2020 and the applicants to pay all arrear salaries by 30th July 2020, failing which the respondents could resort to the consent order. Costs were awarded in the cause.

Key legal issues

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01

Whether the applicants were entitled to a mandatory injunction compelling return to work and a declaration that the strike was illegal

Holding

The applicants had substantially complied with the consent order but had not been candid about budgeting for arrear salaries; they failed to show inherent merit for a mandatory injunction, though return to work was ordered in the public interest with payment of arrears by 30th July 2020

Reasoning

The court accepted that the applicants had substantially complied by effecting promotions and factoring salaries into the June 2020 payroll, but found they lacked candour regarding budgeting for arrears. The strike right had accrued under the consent order's default clause because of the applicants' non-compliance. Balancing public interest in health services during the COVID-19 pandemic against the respondents' accrued rights, the court directed resumption of work while giving a strict deadline for payment of arrear salaries, failing which the respondents could resume industrial action.

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02

Whether the consent order of 30th January 2020 could be set aside or varied

Holding

No - the applicants satisfied none of the grounds for setting aside a consent order

Reasoning

The court held that consent orders stand on the same footing as contracts and may only be set aside on grounds such as fraudulent misrepresentation, mutual mistake, illegality or force majeure. The applicants, who were the dominus litis and initiators of the consent order, could not disown the default clause allowing resumption of industrial action upon non-compliance. Their inability to pay arrears stemmed from their own failure to budget in the 2019/2020 financial year.

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Legal principles established

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  • Conservatory orders in public law disputes are granted on the inherent merit of the case, bearing in mind public interest, constitutional values and proportionate magnitudes, and are not tied to the private-law tests of irreparable harm and probability of success
  • Consent orders cannot be reviewed or set aside except on grounds warranting cancellation of a contract, such as fraudulent misrepresentation, mutual mistake, illegality or force majeure
  • Counsel must not take lightly undertakings made before court upon which orders are made

Court orders

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  1. 1.All the health workers the subject of this suit directed to resume work on or before Friday 26th June 2020
  2. 2.The applicants to pay all arrear salaries in terms of the consent order entered into by the parties on 30th January 2020 on or before the 30th July 2020, failing which the respondents be at liberty to resort to the terms of the consent order
  3. 3.Costs in the cause

Authorities

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Legislation

  • Labour Relations ActSection 78(1), Section 81(5), 4th Schedule
  • Constitution of Kenya 2010Article 41, Article 24(1)
  • Public Health ActCap 242
  • Public Health (Prevention, Control and Suppression of COVID-19) Regulations2020

Cases cited (1)

  • Gatirau Peter Munya -Vs- Dickson Mwenda Kithinji & 2 others
    SC Application No. 5 of 2014, (2014) eKLR
Jurisdiction invoked
Articles 41 and 24(1) of the Constitution of Kenya 2010 read with the Labour Relations Act 2007, sections 78(1) and 81(5), in a first-instance employment and labour relations dispute

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 Kisumu & another v Kenya Union of Clinical Officers & 3 others;Cabinet Secretary-Labour & Social Protection(Interested Party) [2020] KEELRC 849 (KLR)", Case Analysis (2020). Applications dated 5th June 2020 and 11th June 2020 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/849/eng@2020-06-24

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