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ELRCPartially AllowedCause No E016 of 2024· [2024] KEELRC 561 (KLR)
County Government of Kisii v Kenya Medical Practitioners Phahmacists & Dentists Union (KMPDU) & another (Cause E016 of 2024) [2024] KEELRC 561 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court ordered Kisii health workers back to work, ruling that strikes in essential services like healthcare are prohibited by law.
What this practically means
#Executive summary
#The County Government of Kisii moved the Employment and Labour Relations Court by a motion dated 5th March 2024 seeking orders to call off a health workers' strike declared on 4th March 2024 by two unions, a return-to-work order, a temporary prohibition on industrial action, and an injunction restraining interference with health services. The Applicant contended that despite negotiations and a Memorandum of Understanding it invited the unions to sign, the unions directed their members to strike without notice, and that as nurses, clinical officers, dentists and pharmacists they are essential service providers under Section 81 of the Labour Relations Act, so the strike was illegal and endangered lives. The 1st Respondent relied on a 2017 Collective Bargaining Agreement whose terms on promotions and conditions, it said, were unimplemented; the 2nd Respondent argued the Applicant had no prima facie case, that the court lacked jurisdiction because the CBA's dispute-resolution mechanisms had not been exhausted, and that a proper strike notice had issued. The court framed a single issue: whether the strike was lawful. It held that although Article 41(2)(d) guarantees the right to strike, that right is not absolute and Section 81's prohibition of strikes in essential services is a reasonable and justifiable limitation under Article 24, since health-sector strikes prejudice the rights of the public. The court accordingly ordered the strike called off, members back to work, issued an injunction protecting health services, and directed the parties to negotiate or conciliate with a report within 30 days. Costs were left in the cause.
Key legal issues
#01
Whether the strike called by the Respondents is lawful
Holding
The strike is prohibited and unlawful because health workers provide essential services and Section 81 of the Labour Relations Act validly prohibits strikes in essential services.
Reasoning
Article 41(2)(d) guarantees the right to strike, but rights may be limited only under Article 24. The court held that prohibiting strikes in the health sector is reasonable and justifiable, since allowing them would prejudice the rights and freedoms of the general public. Section 81 therefore constitutes a reasonable limitation that does not conflict with Article 41, rendering the ongoing strike unlawful.
p. 5
Legal principles established
#- The right to strike under Article 41(2)(d) is not absolute; Section 81 of the Labour Relations Act prohibiting strikes in essential services is a reasonable and justifiable limitation under Article 24 of the Constitution.
Court orders
#- 1.Pending the hearing and determination of the claim, the Respondents and/or their officials, agents or servants, assigns and/or anybody else claiming under them are ordered to immediately call off the ongoing strike, picketing or industrial action declared on 4th March, 2024
- 2.Members of the Respondents' Unions are ordered to report back to work with immediate effect
- 3.An order of injunction is issued restraining the Respondents, their employees, agents, servants, assigns and/or anybody else claiming under them from interfering with the smooth running of health services at the County Government of Kisii pending the hearing and determination of the suit
- 4.The Parties are ordered to conclude the negotiation on the issues in dispute, or in the alternative, submit the dispute for conciliation and file a report in court within 30 days of the order
- 5.Costs shall be in cause
- Jurisdiction invoked
- Section 3(1) of the Employment and Labour Relations Court Act; Section 76(c) of the Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Kisii v Kenya Medical Practitioners Phahmacists & Dentists Union (KMPDU) & another (Cause E016 of 2024) [2024] KEELRC 561 (KLR)", Case Analysis (2024). Cause No E016 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/561/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.