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ELRCDismissedNot stated in the judgment (ELRC, Nakuru)· [2023] KEELRC 3374 (KLR)

Kenya National Union of Nurses v County Public Service Board of Nakuru & another (Employment and Labour Relations Cause E029 of 2023) [2023] KEELRC 3374 (KLR)

Employment and Labour Relations Court of Kenya
19 December 2023
5,289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Employment Court in Nakuru ruled that a union's claim over nurses' employment terms was properly before it and dismissed the County Government's jurisdiction challenge.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim on 29th June 2023 alleging unfair labour practices by the respondents: retention of nurses on casual and contract terms, failure to absorb nurses employed by 2019 into permanent and pensionable terms, and underpayment. Together with the claim it filed a notice of motion seeking, inter alia, a stay of implementation of a circular dated 31st May 2023 terminating all casual engagements. On 27th July 2023 the court granted the stay prayer in the absence of any response. The respondents then filed two applications seeking to vacate or set aside those orders, arguing the court had issued final orders at the interlocutory stage while a preliminary objection dated 6th July 2023 challenging jurisdiction, prematurity, locus standi and exhaustion of alternative remedies was pending. The 1st respondent relied on Order 45 rule 1 and the Lillian S jurisdiction doctrine; the 2nd respondent relied on Mukisa Biscuit, Mary Wambui Munene and authorities against granting final relief interlocutorily. The claimant opposed, asserting jurisdiction under Articles 162(2)(a) and 165(3)(b), that conciliation had been exhausted before a conciliator's report of 9th June 2023, and that the orders were interlocutory status-quo orders. Justice Wasilwa held that section 89 of the Public Service Commission Act was inapplicable as the claim was not an appeal from a PSC decision, that conciliation had been exhausted so the claim was properly before the court under section 73 of the Labour Relations Act, and that no basis was shown to deny the union locus. She dismissed the preliminary objection, ordered the main claim to proceed, and awarded costs in the cause. The full names of the parties and the case number are not stated in the judgment.

Key legal issues

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01

Whether the ELRC has jurisdiction over the claim notwithstanding sections 89 of the Public Service Commission Act and 73 of the Labour Relations Act

Holding

The Court has jurisdiction; section 89 does not apply because the claim is not an appeal from a PSC decision, and section 73 is satisfied because conciliation was exhausted before filing

Reasoning

The court examined section 89 of the Public Service Commission Act and found it contemplates enforcement of PSC decisions, which is not the nature of this claim. On section 73 of the Labour Relations Act, the dispute had already gone through conciliation with a report recommending absorption of employees, so the statutory dispute-resolution precondition was met and the claim was properly before the court.

p. 10
02

Whether the claimant union lacks locus standi

Holding

The objection fails; the union properly brought the claim on behalf of its members and the respondents gave no reason why it lacks locus

Reasoning

The court noted that the respondents relied on a prior ELRC Nakuru decision but did not explain why the union, which filed the claim on behalf of its nurse members, lacked standing. Without any demonstration of why a union representing its members cannot sue, the locus ground of the preliminary objection could not stand.

p. 10
03

The propriety of the preliminary objection as a whole

Holding

The preliminary objection is dismissed as lacking merit and the main claim is to proceed

Reasoning

Having found that the jurisdictional and exhaustion grounds failed and that no basis was shown to deny the union standing, the court concluded the objection was without merit. It dismissed the objection and directed the main claim to proceed, with costs reserved in the cause rather than awarded to either side.

p. 10

Legal principles established

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  • Where a trade dispute has been subjected to and exhausted conciliation, a claim founded on it is properly before the ELRC under section 73 of the Labour Relations Act
  • A union bringing a claim on behalf of its members has locus standi; a bare assertion that it lacks locus without explanation does not sustain a preliminary objection
  • Section 89 of the Public Service Commission Act applies to enforcement of decisions of the Public Service Commission and has no application where the claim before the ELRC is not an appeal against such a decision

Court orders

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  1. 1.The preliminary objection dated 6th July 2023 is dismissed for lack of merit
  2. 2.The main claim to proceed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 43(1)(a), 47, 50, 53(1), 27, 13, 159, 162(2)(a), 165(3)(b), 235; Fourth Schedule
  • Employment ActSections 2, 35, 37(4), 43
  • Labour Relations ActSections 5, 73
  • Public Service Commission ActSections 87, 89
  • County Government ActSection 59
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 5, 17(3), 28(1), 33(1)
  • Civil Procedure RulesOrder 45 rule 1
  • Public Service Commission HR ManualSection D20
  • Public Service Superannuation Scheme ActReferenced as 'PSSS Act'

Cases cited (11)

  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR
  • Mukisa Biscuit Manufacturers Ltd –vs- Westend Distributors Ltd
    (1969) E.A. 696
  • Mary Wambui Munene v. Peter Gichuki Kingara and 6 others
    [2014] eKLR, Petition No. 7 of 2013
  • Kenya Airports Authority Vs Paul Njogu Muigai & 2 Others
    Civil Application No. NAI. 29/97
  • Ashok Kumar Bajpai –Vs- Dr. (smt) Ranjama Baipai
    Air 2004, All 107, 2004 (1) AWC 88
  • Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti & 4 others
    [2016] eKLR
  • Sangram Singh Vs Election Tribunal Kotch
    AIR 1955 SC 664
  • Transparency International-Kenya -Vs- Teresa Carlos Omondi
    Civil Appeal No. 81 of 2018
  • Kenya Airline Pilots Association (KALPA) Vs Co-operative Bank of Kenya Limited & another
    [2020] eKLR
  • Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & others
    [2012] eKLR
  • Kenya Engineering Workers Union Vs Rift Valley Engineering Limited
    [2022] eKLR, ELRC No. 61 of 2018 (Nakuru)
Jurisdiction invoked
Articles 162(2)(a) and 165(3)(b) of the Constitution (ELRC 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 v County Public Service Board of Nakuru & another (Employment and Labour Relations Cause E029 of 2023) [2023] KEELRC 3374 (KLR)", Case Analysis (2023). Not stated in the judgment (ELRC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3374/eng@2023-12-19

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