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ELRCPartially AllowedPetition dated 14th May 2019 (E&LRC)· [2021] KEELRC 1895 (KLR)

Kenya National Union of Nurses [KNUN] v Director of Public Prosecutions & 3 others; Seth Ambusini Panyako & 10 others (Interested Parties) [2021] KEELRC 1895 (KLR)

Employment and Labour Relations Court
9 April 2021
JRJames Rika
974 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 and Labour Relations Court cannot stop criminal prosecutions of striking workers — only the High Court can — but it can block employers from firing them.

What this practically means

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Executive summary

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The Interested Parties, officials and members of the Petitioner trade union, were arrested and charged in Milimani Chief Magistrate's Court Criminal Case Numbers 2055 and 2065 of 2018 with creating disturbance, taking part in an unlawful assembly, and resisting lawful arrest, following an industrial action at Kenyatta National Hospital between 29th and 31st October 2018. They petitioned the Employment and Labour Relations Court on 14th May 2019, arguing their industrial action was a labour dispute protected by the Constitution and section 22(a) of the Labour Relations Act and should not be criminalized, seeking orders to prohibit their prosecution and to bar the 4th Respondent from terminating their employment contracts. The 1st Respondent raised a Notice of Preliminary Objection on jurisdiction, supported by the other Respondents, relying on Article 162(2)(a) of the Constitution, Section 12 of the E&LRC Act, and the Supreme Court decision in Republic v Karisa Chengo. The Court agreed, holding that criminal proceedings instituted by the Republic against named accused persons are not employer-employee disputes and that the E&LRC cannot supervise a Subordinate Court exercising criminal jurisdiction. Only the prayer restraining the 4th Respondent from terminating contracts fell within the Court's jurisdiction. The 1st, 2nd and 3rd Respondents were discharged from the Petition; all prayers except A, E, H and I (restricted to the 4th Respondent) were struck off; no order was made on costs; and the remainder of the Petition was directed to be set down for hearing. The Court noted the Interested Parties may still raise the criminalization argument before the trial Magistrate.

Key legal issues

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01

Jurisdiction of the E&LRC over criminal proceedings arising from an industrial action

Holding

The E&LRC lacks jurisdiction to prohibit or stay criminal prosecutions for Penal Code offences committed during a strike; those are criminal, not employment, disputes and belong to the High Court.

Reasoning

Applying Republic v Karisa Chengo and Samuel Kamau Macharia, the Court held that specialized courts' jurisdiction is constitutionally delimited. The criminal charges (creating disturbance, unlawful assembly, resisting arrest) are brought by the Republic against named accused, not a dispute between employer and employee. The E&LRC cannot supervise a Subordinate Court exercising criminal jurisdiction, and the Interested Parties are not charged under any Labour Law.

p. 2
02

Whether the prayer to restrain the 4th Respondent from terminating employment falls within the E&LRC's jurisdiction

Holding

Yes — the only prayer within the E&LRC's jurisdiction is the restraint against the 4th Respondent terminating the Interested Parties' contracts based on the industrial action.

Reasoning

Since that prayer concerns an employer-employee relationship arising directly from a labour dispute, it is a matter within the Court's constitutional mandate under Article 162(2)(a) and Section 12 of the E&LRC Act. The Petition proceeds against the 4th Respondent only, with the remaining prayers set down for hearing.

p. 2

Legal principles established

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  • The E&LRC has no jurisdiction to prohibit or supervise criminal prosecutions of employees over offences of a general nature under the Penal Code; the proper forum is the High Court.
  • The E&LRC would have supervisory jurisdiction only over criminal proceedings relating to offences under Labour Laws.

Court orders

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  1. 1.The 1st, 2nd and 3rd Respondents are discharged from the Petition herein.
  2. 2.All prayers in the Petition, except prayer A, E, H and I, restricted to the 4th Respondent, are struck off.
  3. 3.No order on the costs.
  4. 4.The Petitioner, Interested Parties, and the 4th Respondent shall set down the remainder of the Petition for hearing.

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a)
  • Penal Codesection 95(1)
  • Penal Codesection 79
  • Penal Codesection 253(b)
  • Employment and Labour Relations Court ActSection 12
  • Labour Relations Actsection 22(a)

Cases cited (2)

  • Republic v. Karisa Chengo & 2 others
    [2017] e-KLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank & 2 others
    [2012] e-KLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act — invoked to determine whether the E&LRC has jurisdiction

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 [KNUN] v Director of Public Prosecutions & 3 others; Seth Ambusini Panyako & 10 others (Interested Parties) [2021] KEELRC 1895 (KLR)", Case Analysis (2021). Petition dated 14th May 2019 (E&LRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1895/eng@2021-04-09

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