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ELRCPartially AllowedPetition No 17 of 2015 (formerly Kisumu High Court Petition No 17 of 2015)· [2021] KEELRC 1147 (KLR)

Joseph Otieno Oruoch v Kenya Medical Practitioners Pharmacists & Dentists Union & another [2021] KEELRC 1147 (KLR)

Employment and Labour Relations Court
30 July 2021
5,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled health workers can strike, but only if hospitals keep a minimum service running to protect patients' lives.

What this practically means

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Executive summary

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The Petitioner, acting in person, petitioned against frequent doctors' and nurses' strikes, alleging that industrial action by health workers caused unnecessary deaths and violated the rights to life, health and emergency medical treatment under Articles 26 and 43. He sought an injunction barring the Kenya Medical Practitioners, Pharmacists & Dentists Union and the Kenya National Union of Nurses from exercising the rights to picket and strike under Articles 37 and 41(2)(d), and declarations that the right to life is superior to the right to strike and that those rights should be limited under Article 24(1). The matter was transferred from the High Court in Kisumu to the ELRC, and heard by a three-judge bench constituted under Article 165(4). The 2nd Respondent raised a preliminary objection on jurisdiction, res judicata (citing Petition No 70 of 2014) and want of precision. The bench overruled the objection in its entirety, holding that the ELRC is a court of equal status with the High Court with power to interpret the Constitution within its subject-matter jurisdiction. On the merits, the court declined to ban strikes by health workers outright, holding that such a prohibition would derogate from the core of the right to strike. Instead it held the right qualified: industrial action by health workers is impermissible without a minimum service retention formula at every affected facility. It directed the Cabinet Secretaries for Health and Labour, with stakeholders, to develop guidelines within 12 months, and ordered the Registrar to serve the judgment on the Attorney General and the Cabinet Secretaries. As public interest litigation, each party bore their own costs.

Key legal issues

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01

Jurisdiction of the ELRC to interpret and apply the Constitution

Holding

The ELRC, being a court of equal status with the High Court under Article 162(2)(a), has jurisdiction to interpret the Constitution and enforce fundamental rights in employment and labour relations matters; the phrase 'High Court' in Article 165(3)(d)(i) includes the two specialised courts

Reasoning

Applying Articles 259(1) and 259(3), the court adopted a purposive interpretation reading 'High Court' in Article 165(3)(d)(i) to include the ELRC and ELC, limited only by subject matter. Article 162(2) ousts High Court jurisdiction over employment disputes. The court relied on Spedag Interfreight, USIU, Mugendi and the Court of Appeal in Okiya Omtatah to settle the point. Karisa Chengo was distinguished as concerning criminal appeals only.

p. 5
02

Res judicata

Holding

The Petition is not res judicata because the issues it raises - balancing the right to life against industrial action and limitation of the right to strike for health workers - were not before Nduma J in Petition No 70 of 2014

Reasoning

Applying the conjunctive elements restated in IEBC v Maina Kiai, the court compared the reliefs and issues in Petition No 70 of 2014 with those in the present Petition and found no overlap on a prima facie basis. The earlier petition concerned the constitutionality of Sections 78 and 81 of the Labour Relations Act and a framework for essential services disputes, not the balance between life and strike rights now in issue.

p. 7
03

Precision in pleading constitutional violations

Holding

The Petition satisfied the 'precision principle' as it set out the violations complained of together with the relevant constitutional provisions, enabling the court to frame specific issues

Reasoning

The 2nd Respondent relied on Anarita Karimi Njeru and Mumo Matemu. The court examined the pleadings, which cited Articles 26, 25(a), 37, 41(2)(d) and 43, and found that specific issues touching specific rights could be drawn from them. The objection failed.

p. 7
04

Balancing the right to life against the right to strike for health workers

Holding

An outright prohibition of strikes by health workers would derogate from the core of the right to strike; the right is qualified and contingent on retention of minimum service at affected facilities

Reasoning

Applying the Article 24 limitation analysis, and drawing on ILO standards, the European Social Charter, and South African and Canadian authorities on the 'minimum service' doctrine, the court held that hospital services are essential services but the answer is a minimum service formula rather than a blanket ban. The court noted conflicting ELRC decisions by Nduma J and Onyango J and sided with a qualified right.

p. 9

Legal principles established

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  • The jurisdictional limitation on the Employment and Labour Relations Court and the Environment and Land Court relates only to subject matter; these courts may interpret and apply the Constitution within their specialised spheres
  • The right of health workers to strike is qualified and contingent upon retention of minimum service

Court orders

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  1. 1.Industrial action by health workers is not permitted unless there is a known and acceptable formula of 'minimum service' retention at every affected health facility, in addition to limitations imposed by the conciliation procedures set by the Labour Relations Act
  2. 2.The Cabinet Secretaries in charge of Health and Labour, in conjunction with all major stakeholders within the health sector, shall within 12 months from the date of the judgment develop and publish guidelines to give effect to the minimum service requirement
  3. 3.The Registrar of the Employment and Labour Relations Court is directed to serve the judgment upon the Attorney General as well as the Cabinet Secretaries in Charge of Health and Labour
  4. 4.Each party to bear their own costs
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act; bench constituted under Article 165(4) by the Chief Justice

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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

Cite this brief

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Cite this brief

Caselaw, "Joseph Otieno Oruoch v Kenya Medical Practitioners Pharmacists & Dentists Union & another [2021] KEELRC 1147 (KLR)", Case Analysis (2021). Petition No 17 of 2015 (formerly Kisumu High Court Petition No 17 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1147/eng@2021-07-30

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