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ELRCDismissedPetition (Employment and Labour Relations Court), filed 17th June 2019· [2020] KEELRC 930 (KLR)

Kenya National Union of Nurses v Council of County Governors & 4 others [2020] KEELRC 930 (KLR)

Employment and Labour Relations Court
28 May 2020
HWHellen Wasilwa
1,685 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court threw out a nurses' union case because it re-filed an already-decided dispute without telling the court about the earlier judgment.

What this practically means

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Executive summary

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The Petitioner, a nurses' union, called a nationwide strike in June 2017 lasting five months, culminating in a Return to Work Agreement signed on 2/11/2017 with the 1st and 4th Respondents. Its terms included withdrawal of disciplinary cases, payment of withheld salaries by 31/11/2017, withdrawal of related litigation (save Petition 1998 of 2017 on grading structures) and resumption of work. The Petitioner alleged that the 2nd Respondent (Murang'a County Government) disregarded the agreement, paying only 332 of 642 nurses, and that the 2nd and 3rd Respondents transferred nurses without paying dues and summarily dismissed some nurses as punishment for participating in the strike, violating Articles 27, 32, 33, 37, 41, 47 and 50 of the Constitution. The Petitioner sought declarations of constitutional violation, mandamus to compel payment of outstanding salaries and allowances, and orders recalling dismissal letters. The 1st Respondent denied being a proper party, the 2nd and 3rd Respondents pleaded res judicata citing Nyeri ELRC Cause 111 of 2018, and the 4th Respondent pleaded devolution of health services. The court found the petition was filed one month after the Nyeri ELRC 111 of 2018 judgment dismissing a claim by the same Petitioner against the same 2nd and 3rd Respondents over the same agreement, without disclosing that judgment - in bad faith and an abuse of process. The petition was dismissed with no order as to costs, with the Petitioner's remedy being an appeal in the Court of Appeal.

Key legal issues

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01

Whether the petition is res judicata

Holding

Yes; the issues were fully determined in Nyeri ELRC 111 of 2018 and the petition was an abuse of process

Reasoning

The court examined the Nyeri ELRC 111/2018 judgment, noting it was filed by the same Petitioner against the same 2nd and 3rd Respondents and concerned the same return to work agreement. Judgment dismissing that claim was rendered on 15/5/2019, yet this petition was filed on 17/6/2019 without disclosing that judgment, which the court found to be in bad faith and an abuse of process.

p. 3
02

Whether the 1st Respondent (Council of Governors) is a proper party

Holding

The argument that it is not a proper party did not hold water, since its status has not changed since the return to work agreement

Reasoning

The 1st Respondent argued it was not an employer within the meaning of section 2 of the Employment Act, being only a consultative forum. The court rejected this, observing that the Council of Governors' status had not changed since it signed the return to work agreement, implying it remained properly joined. The point was however overtaken by the dismissal on res judicata grounds.

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Whether the 4th Respondent bears liability for the alleged violations

Holding

The 4th Respondent has a limited role since health services are devolved; county governments handle salaries, staffing and discipline

Reasoning

Through the Replying Affidavit of Susan Mochache, the 4th Respondent contended that health services were devolved and counties are in charge of salaries, staffing and discipline, with national government interference only under Article 190(3) and section 21 of the County Governments Act. Its role in the agreement was only to facilitate negotiations. This was addressed in submissions but not separately determined given the res judicata finding.

p. 2

Legal principles established

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  • A litigant who files a subsequent suit over a matter already heard and determined, without disclosing the prior judgment, abuses the court process and the suit is res judicata
  • Where a matter is res judicata, the court will not delve into the merits; the party's remedy is an appeal

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 27(1),(2),(4), 28, 32, 33, 37, 41, 47, 48, 50(1), 190(3)
  • Employment ActSection 2
  • County Governments ActSection 21

Cases cited (5)

  • County Government of Kakamega & 2 Others vs. Salaries Remuneration Commission; County Government of Mombasa (Interested Party)
    [2018] eKLR
  • Republic vs. Kenya Revenue Authority ex parte KSC International Limited (In Receivership) as cited Keroche Industries Limited vs. KRA & 5 Others
    [2005] KLR 240 at 295
  • Town Council of Kikuyu vs. The National Social Security Fund Board of Trustees & Others
    [2015] eKLR
  • Republic vs. Transition Authority and Council of Governors ex parte KMPDU
    [2013] eKLR
  • Nyeri ELRC Cause 111 of 2018 (National Nurses Association of Kenya v Murang'a County Government & Another)
    null
Jurisdiction invoked
Constitution of Kenya, Articles 10, 27, 28, 32, 33, 37, 41, 47, 48 and 50 (as invoked in the petition)

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, "Kenya National Union of Nurses v Council of County Governors & 4 others [2020] KEELRC 930 (KLR)", Case Analysis (2020). Petition (Employment and Labour Relations Court), filed 17th June 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/930/eng@2020-05-28

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