Kenya Medical Practitioners Pharmacists and Dentists Union (KMPDU) v County Public Service Board of Wajir & another (Employment and Labour Relations Petition E186 of 2023) [2023] KEELRC 3401 (KLR)
The bottom line
#Kenya's Employment Court confirmed that skipping conciliation does not block a constitutional rights case, dismissing the employers' attempt to strike out the petition.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection is meritorious
It is not meritorious; it does not raise a pure point of law and the dispute raises constitutional issues within the court's jurisdiction
Applying Mukisa Biscuits and Quick Enterprises, the court found the objection premised on failure to exhaust Sections 58 and 62 of the Labour Relations Act, which are permissive ('may conclude a collective agreement'), not mandatory like an arbitration clause. The Petition's first prayer is a declaration that Articles 27, 41, 43, 47 and 48 rights were infringed, so the dispute is not a mere trade dispute and constitutional issues fall squarely within the court's purview, exempting the Petitioner from the exhaustion doctrine per Ramogi.
Whether failure to refer the dispute to conciliation under Sections 58 and 62 of the Labour Relations Act ousts the court's first-instance jurisdiction
No; the provisions are not mandatory and constitutional questions fall within the court's jurisdiction
Section 58 provides that an employer and trade union 'may' conclude a collective agreement providing for conciliation/arbitration - permissive, not mandatory. Unlike a contractual arbitration clause that must be strictly observed, failure to pursue conciliation does not deprive the court of jurisdiction, especially where the Petition raises constitutional infringements intertwined with labour relations.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be sustained where facts have to be ascertained or judicial discretion exercised
- The exhaustion requirement may be excused in exceptional circumstances where constitutional interpretation or an important constitutional value is at stake
Court orders
#- 1.The Preliminary Objection dated 12th October 2023 is dismissed
- 2.Each party to meet their respective costs of the preliminary objection
- 3.The parties may proceed with the notice of motion application or with both the application and petition as they choose
- Jurisdiction invoked
- Article 162(2) of the Constitution (establishment of the Employment and Labour Relations Court) - the judgment deals with the ELRC's first-instance jurisdiction over a Petition and Notice of Motion dated 28th September 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Medical Practitioners Pharmacists and Dentists Union (KMPDU) v County Public Service Board of Wajir & another (Employment and Labour Relations Petition E186 of 2023) [2023] KEELRC 3401 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3401/eng@2023-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.