Kenya National Union of Nurses & another v Cabinet Secretary, Ministry of Health & 95 others; Attorney General (Interested Party) [2021] KEELRC 2307 (KLR)
The bottom line
#Kenya's Employment Court quashed a Health Ministry circular that stopped nurses' union dues, ruling only the Labour Cabinet Secretary can suspend lawful dues deductions.
What this practically means
#Executive summary
#Key legal issues
#Whether the claims were res sub judice by virtue of the earlier Transition Authority (KMPDU) case
Not res sub judice; the earlier case was determined and the subject matter here is unconnected to it
The Respondents argued the claims duplicated the KMPDU ex parte suit on transfer of health services to counties. The court found the cited case already determined and that the present subject matter — the legality of a circular stopping deduction and remittance of union dues — has no connection, even remote, with the subject matter of the Transition Authority case. The res sub judice ingredients, including same subject matter, were not met.
Whether the Cabinet Secretary for Health could, by circular, stop deduction and remittance of union dues under a subsisting Ministerial Order (Legal Notice No. 160 of 2018)
The Circular was null and void; only the Cabinet Secretary for Labour may revoke or suspend a Section 48 Order under Section 50(2) on the limited statutory grounds
Section 48 of the Labour Relations Act allows a trade union to obtain a Ministerial Order compelling employers to deduct dues, and Section 50(2) reserves revocation or suspension to the Labour Minister on narrow grounds. Rika J's decision in KNUN v Kilifi County Public Service Board affirmed this. The Circular flew in the face of clear statute and no consultation could save it.
Legal principles established
#- Once a Ministerial Order under Section 48 of the Labour Relations Act issues, an employer must commence deductions, and only the issuing Labour Cabinet Secretary may revoke or suspend it under Section 50(2) on the specified grounds; no other authority may halt the Order
Court orders
#- 1.Circular Ref: MOH/HRM&D/IPPD/SM/(30) dated 22nd December 2020 is hereby quashed
- 2.Implementation of the said Circular dated 22nd December 2020 is stopped
- 3.A declaration that the 1st and 2nd Respondents have no legal capacity to issue directives to County Public Service Boards regarding deduction and remittance of trade union dues on account of the Claimants' members
- 4.The claim for payment of money lost as a result of the Circular fails for want of proof
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over trade union dues disputes under the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses & another v Cabinet Secretary, Ministry of Health & 95 others; Attorney General (Interested Party) [2021] KEELRC 2307 (KLR)", Case Analysis (2021). Cause No. E085 of 2021 (Consolidated with Cause No. E066 of 2021 and Cause No. E101 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2307/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.