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ELRCAllowedNot stated (Cause transferred from Bungoma ELRC)· [2024] KEELRC 489 (KLR)

Kenya National Union of Nurses v Busia County Public Service Board & 5 others (Cause 001 of 2023) [2024] KEELRC 489 (KLR)

Employment and Labour Relations Court
22 February 2024
RSRadido Stephen
688 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 Court ordered Siaya and Kisumu counties to pay nurses' unpaid 2021 salaries, ruling the withholding was an unfair labour practice.

What this practically means

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Executive summary

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The Kenya National Union of Nurses sued six County Public Service Boards before the Employment and Labour Relations Court at Bungoma in July 2022 over non-payment of salaries for December 2020 to February 2021. The claims against Busia and Kakamega settled out of court, and on 22 May 2023 the Bungoma court, finding it lacked jurisdiction over the claims against Migori, Kisumu and Siaya, transferred the file to Kisumu. During mention the Union and the Migori Board reported an agreement, with a consent to be filed, leaving Siaya and Kisumu for hearing. The Branch Secretaries for Siaya and Kisumu testified; the Boards, though served, did not participate, leaving the Union's case uncontroverted. The Court noted recognition agreements with both Boards and relied on conciliation reports: for Siaya, a report dated 4 November 2021 found some employees were not paid for January and February 2021 and recommended payment; for Kisumu, a report dated 3 December 2021 found the strike arose from failure to provide protective masks, which the Occupational Safety and Health Act required, and recommended payment of wages for January and February 2021. The Union produced schedules of the affected nurses. The Court held the Union had proved its case to the required standard, declared the withholding of the January and February 2021 salaries an unfair labour practice and breach of contract, and ordered the Boards to pay the listed employees the withheld remuneration, with interest at court rates if unpaid within 45 days. Given the ongoing social partnership, each party was ordered to bear its own costs. Judgment was delivered virtually on 22 February 2024 by Radido Stephen, J.

Key legal issues

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01

Whether non-payment of nurses' salaries for January and February 2021 was established

Holding

The Court found the claim proved on the uncontroverted evidence, including the conciliators' reports and schedules of affected employees

Reasoning

The Union had recognition agreements with both Boards. Following trade disputes reported to the Cabinet Secretary for Labour, Conciliators appointed under Part VIII of the Labour Relations Act found that the Siaya Board had not paid some employees for January and February 2021 and recommended payment; for Kisumu, the Conciliator found the strike followed failure to provide protective masks as required by the Occupational Safety and Health Act and recommended payment of wages. The respondents were served but did not participate, so the case was uncontroverted.

p. 2

Legal principles established

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  • Withholding employees' remuneration for January and February 2021 constituted an unfair labour practice and breach of contract

Court orders

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  1. 1.Declaration that the withholding of the Union's members' salaries for January and February 2021 by the Boards of Siaya and Kisumu was an unfair labour practice and breach of contract
  2. 2.Order that the Boards pay the employees listed in the schedules the withheld remuneration
  3. 3.Interest at court rates from the date of judgment if payment is not effected within 45 days
  4. 4.Each party to bear own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the trade dispute (Labour Relations Act, Part VIII conciliation)

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 Busia County Public Service Board & 5 others (Cause 001 of 2023) [2024] KEELRC 489 (KLR)", Case Analysis (2024). Not stated (Cause transferred from Bungoma ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/489/eng@2024-02-22

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