Kenya Medical Practitioners Pharmacists and Dentists’ Union v County Secretary, Taita Taveta County Government & 3 others [2021] KEELRC 1713 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Exhaustion of alternative dispute resolution mechanisms
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
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.
Suitability of judicial review for merits-based grievances
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
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.
Whether the applicant established exceptional circumstances to bypass prescribed procedures
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
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.
Legal principles established
#- 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
#- 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.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.Each party to bear own costs of the proceedings
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.