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ELRCStruck OutJudicial Review Application, Notice of Motion dated 19.03.2020 (ELRC Mombasa)· [2021] KEELRC 1713 (KLR)

Kenya Medical Practitioners Pharmacists and Dentists’ Union v County Secretary, Taita Taveta County Government & 3 others [2021] KEELRC 1713 (KLR)

Employment and Labour Relations Court
21 May 2021
3,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a doctors' union's judicial review case because it skipped the dispute-resolution steps agreed in their collective bargaining agreement.

What this practically means

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Executive summary

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The applicant union, through a notice of motion dated 19 March 2020, sought judicial review orders of certiorari to quash a circular dated 18 November 2019 by the acting County Secretary of the Taita Taveta County Public Service Board withdrawing call, risk and other allowances from 16 doctors on study leave, mandamus to implement the CBA and adjust house allowances, and prohibition against further deductions. The respondents filed a preliminary objection asserting lack of jurisdiction, prematurity, and failure to exhaust dispute resolution mechanisms under Article 234(2)(i) of the Constitution, section 77 of the County Governments Act, section 85 of the Public Service Commission Act, and the CBA's own grievance procedure. After considering the parties' submissions, Ongaya J held that the substance of the dispute concerned remuneration and terms of service, but that the withdrawal of allowances from a group of doctors amounted to a collective grievance under Article VII of the CBA, which required resolution through conciliation under the Labour Relations Act, 2007, and failing settlement, reference to the Employment and Labour Relations Court. Individual grievances, by contrast, would lie on appeal to the Public Service Commission. The Court further held that judicial review was unsuitable because the grievance required in-depth fact-finding on the merits. The judicial review application was struck out as an abuse of court process, with parties at liberty to invoke the CBA's collective grievance procedure, and each party bearing its own costs.

Key legal issues

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01

Exhaustion of alternative dispute resolution mechanisms

Holding

The grievance was a collective grievance subject to the CBA's dispute resolution procedure and conciliation under the Labour Relations Act, 2007; the judicial review application bypassing that procedure was an abuse of process and was struck out

Reasoning

The Court found the substance of the dispute related to remuneration and terms of service, but that the withdrawal of allowances affected a group of doctors, making it a collective grievance under Article VII of the CBA. The agreed procedure was conciliation under the Labour Relations Act, 2007, failing which reference to the ELRC. Filing judicial review instead was inconsistent with the CBA and an abuse of process. Individual grievances, by contrast, would lie on appeal to the Public Service Commission.

p. 4
02

Suitability of judicial review for merits-based grievances

Holding

The judicial review application was not the appropriate vehicle because the grievance required in-depth fact finding on the merits, including whether the respondents had authority to vary allowances agreed in the CBA

Reasoning

The Court held that the alleged breach went directly to the merits of the impugned decision and not merely procedural impropriety. Although emergent jurisprudence permits merit review on grounds such as illegality or unreasonableness, the merit considerations here barred the suitability of the present judicial review application.

p. 4
03

Whether the applicant established exceptional circumstances to bypass prescribed procedures

Holding

While the applicant appeared to raise an exceptional circumstance of illegality (breach of contract and unilateral variation of terms), the Court nonetheless found the CBA grievance procedure applicable and the review proceedings misconceived

Reasoning

The Court acknowledged that allegations of illegality, procedural impropriety or breach of rights could constitute exceptional circumstances under section 9(4) of the Fair Administrative Action Act justifying bypass of prescribed procedures. However, because the matter was a collective grievance with an agreed resolution path, the application remained an abuse of process.

p. 4

Legal principles established

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  • Where parties have agreed a dispute resolution procedure in a CBA, that procedure must be exhausted before resorting to court; bypassing it renders proceedings an abuse of process
  • Impugned decisions affecting a group of employees amount to collective grievances to be resolved through conciliation under the Labour Relations Act, 2007, while individual grievances lie on appeal to the Public Service Commission
  • Judicial review is ill equipped to resolve disputes requiring in-depth fact finding on the merits of an administrative decision

Court orders

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  1. 1.The judicial review proceedings commenced by way of the notice of motion dated and filed on 19.03.2020 are struck out for want of compliance with the collective grievance dispute resolution procedure in the prevailing CBA
  2. 2.Parties at liberty to invoke the collective grievance dispute resolution procedure in the prevailing CBA in view of the impugned circular dated 18.11.2019
  3. 3.Each party to bear own costs of the proceedings

Authorities

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Legislation

  • Constitution of KenyaArticle 234(2)(i); Article 41; Article 159(2)(c); Article 262
  • County Governments ActSection 77(1) and (2)(b); sections 57 and 59
  • Public Service Commission Act, 2017Section 85(2)(b); section 88
  • Fair Administrative Action ActSection 9(2) and 9(4)
  • Employment and Labour Relations Court Act, 2011Section 12
  • Labour Relations Act, 2007Conciliation and collective bargaining provisions
  • Employment and Labour Relations Court (Procedure) Rules, 2016General
  • Public Service Commission Human Resource Policies and Procedures ManualClause K.10

Cases cited (9)

  • Secretary County Public Service Board & Another v Hulbhai Gedi Abdlle
    [2016] eKLR
  • Kenya County Government Workers Union v County Government of Tana and Another
    [2018] eKLR
  • James Tinai Murete & Another v County Government of Kajiado and Others
    HCC No. 283 of 2014
  • Speaker of the National Assembly v Hon. James Njenga Karume
    Civil Appeal No. NA 192 of 1992
  • Alfred Sifa Dena v Benjamin Kai Chilumo
    [2020] eKLR
  • Ismael Noo Onyango & Another v Siaya County Public Service Board and Another
    [2018] eKLR
  • Republic v Kenya Revenue Authority Ex-Parte Style Industries Limited
    [2019] eKLR
  • Republic v Nelson Andayi Havi and Others
    HCJR Application No. E1146 of 2020 (Nairobi)
  • Abdikadir Suleiman v County Government of Isiolo & Another
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011 section 12; dispute resolution under Article 159(2)(c) of the Constitution and the Labour Relations Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kenya Medical Practitioners Pharmacists and Dentists’ Union v County Secretary, Taita Taveta County Government & 3 others [2021] KEELRC 1713 (KLR)", Case Analysis (2021). Judicial Review Application, Notice of Motion dated 19.03.2020 (ELRC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1713/eng@2021-05-21

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