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ELRCDismissedNot stated in judgment· [2022] KEELRC 800 (KLR)

Kenya National Union of Nurses v Nairobi County Public Service Board & another [2022] KEELRC 800 (KLR)

Employment and Labour Relations Court
16 February 2022
JRJames Rika
1,048 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Kenya Union of Nurses, a registered trade union, sued on behalf of 70 nurses employed by the 1st Respondent on locum contracts at Pumwani Maternity Hospital between June and November 2019. The claimant sought absorption of the nurses into permanent and pensionable terms, a bar on employing nurses on locum contracts in permanent positions, payment of salary arrears from engagement to date, compliance with Sections 17 and 37 of the Employment Act, and costs. The union relied on the testimony of one nurse, Lucy Chepkorir, who confirmed the nurses earned Kshs. 35,000 monthly, that some arrears had been paid, and that some prayers had been overtaken by events. The 1st Respondent called no witness and the 2nd Respondent did not participate. The Court found the evidence inadequate: the witness did not know all 70 nurses, and the nurses did not all hold the same qualifications. The Court held there is nothing unconstitutional or illegal about locum contracts, which are common and lawful in the medical and nursing profession, and that the nurses freely accepted their contracts. The claim for arrears failed for lack of specificity, and reinstatement was unavailable since the limited-period contracts had lapsed and the Court cannot rewrite contracts through reinstatement. The Claim was dismissed with no order on costs, on 16th February 2022.

Key legal issues

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01

Legality of locum contracts

Holding

Locum contracts are not unconstitutional or illegal; the Nurses freely accepted them

Reasoning

The Court found the Nurses were offered and accepted locum contracts knowing their nature, duration and salary. Locum is a common instrument in the medical and nursing profession facilitating mobility of health workers across facilities. The claimant produced nothing showing nursing roles must always be permanent and pensionable. The Court held the Respondents did not violate the Constitution by offering locum contracts.

p. 2
02

Proof of salary arrears

Holding

Arrears were not proved; the claim lacked specificity

Reasoning

The sole witness could not identify all 70 Nurses, could not clarify her own arrears figure, and conceded some prayers were overtaken by events without amending the pleadings. The Court held an employee must assist the Court to determine what arrears, if any, are due, and to arrive at a specific figure per Nurse.

p. 2
03

Reinstatement as a remedy

Holding

Reinstatement was unavailable because the limited-period contracts had lapsed

Reasoning

Reinstatement restores the terms of the contract, including the effective date of termination. The Nurses were on temporary contracts which had expired; they could not be reinstated to permanent and pensionable terms which never existed, and the Court may not rewrite contracts under the guise of reinstatement.

p. 2
04

Adequacy of evidence

Holding

The evidence of the sole witness was insufficient to support the claim on behalf of 70 Nurses

Reasoning

Nurse Chepkorir did not know all the 70 Nurses on whose behalf the claim was brought, and conceded that the Nurses did not all hold the same qualifications. Her evidence therefore could not sustain the claim for equal pay and conversion to permanent terms.

p. 2

Legal principles established

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  • Locum contracts in the medical and nursing profession are lawful and enforceable where freely negotiated and executed
  • A claimant seeking salary arrears must plead and prove the specific sums due
  • Reinstatement cannot be used to impose terms of employment that never existed in the contract

Court orders

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  1. 1.The Claim is dismissed
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment ActSection 17
  • Employment ActSection 37
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (statutory basis not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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 National Union of Nurses v Nairobi County Public Service Board & another [2022] KEELRC 800 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/800/eng@2022-02-16

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