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 AllowedCause No E637 of 2020· [2021] KEELRC 1649 (KLR)

County Government of Makueni & another v Kenya Union of Clinical Officers (KuCO) & 6 others [2021] KEELRC 1649 (KLR)

Employment and Labour Relations Court
28 May 2021
MOMAUREEN ONYANGO
3,302 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed that nurses and other health workers cannot lawfully go on strike because health services are essential services protected by law.

What this practically means

#

Executive summary

#
By a Statement of Claim filed on 9 October 2020, the Government of Makueni County and the Makueni County Public Service Board sought a declaration that a strike called by the Respondents by notice dated 28 September 2020 was unlawful, prohibited and unprotected, together with a direction that the Interested Party appoint a conciliator. Ex-parte interim injunctions were granted on 9 October 2020; on 14 October 2020 parties were referred to the County Labour Office Makueni for conciliation, which failed and produced a certificate of disagreement. Only the 2nd and 3rd Respondents filed responses; the 2nd Respondent alone filed submissions, contending that the strike was protected under Article 41 of the Constitution and that the Claimants had failed to address promotions, re-designation and contractual employment grievances of nursing officers. The court framed a single issue: whether the strike called by the notice of 28 September 2020 was unlawful, prohibited and unprotected. Holding that health services are essential services under the Fourth Schedule to the Labour Relations Act and that Section 81(3) prohibits strikes in such services, the court applied Article 24 of the Constitution and found the limitation of the right to strike reasonable and justifiable, since withdrawal of medical services would endanger the rights to life, health and emergency treatment of patients. Relying on Okiya Omtatah Okoiti v Attorney General and Kenya Ferry Services Ltd v Dock Workers Union, the court declared the strike unlawful, prohibited and unprotected, and ordered each party to bear its own costs. The conciliator prayer was overtaken by events.

Key legal issues

#
01

Whether the strike notice dated 28th September 2020 called a lawful, protected strike

Holding

The strike is unlawful, prohibited and unprotected because the Respondents' members provide essential (health) services, and Section 81 of the Labour Relations Act validly limits the constitutional right to strike under Article 24 of the Constitution.

Reasoning

Article 41(2)(d) guarantees every worker the right to strike, but the Fourth Schedule to the Labour Relations Act categorises health services as essential and Section 81(3) prohibits strikes in essential services. Applying the Article 24 limitation analysis, the court found the limitation reasonable and justifiable because withdrawal of medical services would endanger life (Article 26), the right to health (Article 43(1)) and emergency treatment (Article 43(2)), and would subject patients to cruel, inhuman and degrading treatment. The court therefore declared the strike unlawful, prohibited and unprotected.

p. 6

Legal principles established

#
  • Strikes in essential services, including health services listed in the Fourth Schedule to the Labour Relations Act, are prohibited under Section 81 and any such strike is unprotected
  • Section 81 of the Labour Relations Act is a lawful limitation of the Article 41(2)(d) right to strike, meeting the Article 24 threshold, because withdrawal of health services endangers life and health of the population

Court orders

#
  1. 1.Declared that the strike called by the Respondents by notice dated 28th September 2020 is unlawful and such strike prohibited under Section 81 of the Labour Relations Act, therefore unprotected

Authorities

#

Legislation

  • Constitution of KenyaArticle 41(2) - labour relations rights
  • Constitution of KenyaArticle 24 - limitation of rights
  • Constitution of KenyaArticle 20(4) - interpretation of Bill of Rights
  • Constitution of KenyaArticles 26, 43(1), 43(2) - right to life, health, emergency treatment
  • Constitution of KenyaArticles 159(2)(d), 48 - access to justice
  • Labour Relations Act No. 14 of 2007Sections 76, 78, 80, 81, 82 and Fourth Schedule
  • Employment ActSection 5(2) and (3) - equal remuneration
  • Human Resource Policies and Procedures Manual for the Public Service, 2016Sections 21 and 25
  • Public Service Commission Human Resource Manual 2016
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Okiya Omtatah Okoiti v The Attorney General & 5 Others
    Petition No. 70 of 2014
  • Kenya Ferry Services Limited v Dock Workers Union (Ferry Branch)
    [2015] eKLR
Jurisdiction invoked
Article 162(2) Constitution / Labour Relations Act s.81(4) (essential service trade disputes adjudicated by the Industrial Court) - the judgment cites Article 41, Labour Relations Act ss.76, 78, 80, 81, 82 and the Employment Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "County Government of Makueni & another v Kenya Union of Clinical Officers (KuCO) & 6 others [2021] KEELRC 1649 (KLR)", Case Analysis (2021). Cause No E637 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1649/eng@2021-05-28

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