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ELRCDismissedNot stated in extract (Memorandum of Claim dated 14th February 2023)· [2024] KEELRC 755 (KLR)

Kenya Medical Practitioners Pharmacists & Dentists Union v Kiambu County Government & 2 others; Mua Insurance (K) Ltd (Interested Party) (Employment and Labour Relations Cause E122 of 2023) [2024] KEELRC 755 (KLR)

Employment and Labour Relations Court
8 April 2024
OKOcharo Kebira
3,143 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a union's suit against Kiambu County because it skipped dispute steps required by the CBA and statutes before going to court.

What this practically means

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Executive summary

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The Claimant Union filed a Memorandum of Claim on 14th February 2023 challenging the Respondents' unilateral change of medical insurance terms for its members and the procurement of a new medical insurance provider. The 1st-3rd Respondents filed two preliminary objections; the first was rendered moot by the Claimant appointing a properly instructed law firm, leaving the objection dated 21st September 2023, which contended that the doctrine of exhaustion of remedies barred the suit. The court framed a single issue: whether the doctrine of exhaustion was offended. It held that the preliminary objection was properly taken because it rested on bypassed statutory and contractual mechanisms requiring no evidence. The CBA between the parties (deemed valid and in place from 1st July 2017) required collective claims and grievances to be processed under Part VIII of the Labour Relations Act - reporting to the Cabinet Secretary, conciliation, and only then reference to the Industrial Court. The Claimant's memo to the 1st Respondent did not excuse it from following the statutory route. Further, the challenge to the procurement process ought first to have gone to forums under the Public Procurement and Asset Disposal Act - the Public Procurement Regulatory Authority or the Public Procurement Administrative Review Board. No exemption from the exhaustion doctrine had been sought by application. Applying Karume and Muthinja Kabiru, the court held the suit premature, upheld the preliminary objection, dismissed the suit with costs.

Key legal issues

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01

Whether the doctrine of exhaustion barred the suit

Holding

Yes - the CBA and the Labour Relations Act and Public Procurement and Asset Disposal Act provided mechanisms the Claimant did not exhaust

Reasoning

The CBA (Articles VII(b)(ii) and I(F)) directed disputes to the Labour Relations Act mechanism of reporting to the Cabinet Secretary and conciliation before court. The procurement challenge fell under the Public Procurement and Asset Disposal Act forums (Regulatory Authority investigation and the Review Board). The Claimant bypassed all these, and had not sought exemption by application.

p. 5
02

Whether the preliminary objection was properly taken without evidence

Holding

Yes - the objection rested on bypassed statutory mechanisms requiring no ascertainment of facts

Reasoning

Although an objection requiring ascertainment of facts is improperly framed under Mukisa Biscuits, this multi-pronged objection was grounded on the bypassed statutory mechanisms under the Labour Relations Act and the Public Procurement Act, which did not require taking of evidence to support.

p. 4

Legal principles established

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  • Where a clear dispute resolution mechanism exists under a contract or statute, it must be exhausted before resorting to court
  • A party seeking exemption from the exhaustion doctrine must apply for it by interlocutory application with sufficient material

Court orders

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  1. 1.The Respondents' Notice of Preliminary Objection dated 21st September 2023 succeeds
  2. 2.The suit is dismissed with costs

Authorities

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Legislation

  • Advocates ActSection 9
  • Labour Relations Act (Cap 233)Sections 2, 62(1) and (2), 65, 73; Part VIII
  • Public Procurement and Asset Disposal Act (Cap 412)Section (1)(h), Section 28(1)(a)
  • Constitution of KenyaArticles 159, 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Cap 21)Section 1B

Cases cited (7)

  • Speaker of the National Assembly v Karume
    [1992] KLR 21
  • Rich Productions Ltd. v Kenya Pipeline Company & another
    Petition No. 173 of 2014
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Musalia Mudavadi & 4 others v Angela Gathoni Wambura & 2 others
    [2019] eKLR
  • RC v KKR
    [2021] eKLR
  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others
    [2015] eKLR
Jurisdiction invoked
Section 12(1)(b) of the Employment and Labour Relations Court Act (cited in submissions); jurisdiction declined under the exhaustion doctrine

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 Medical Practitioners Pharmacists & Dentists Union v Kiambu County Government & 2 others; Mua Insurance (K) Ltd (Interested Party) (Employment and Labour Relations Cause E122 of 2023) [2024] KEELRC 755 (KLR)", Case Analysis (2024). Not stated in extract (Memorandum of Claim dated 14th February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/755/eng@2024-04-08

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