County Government of Meru v Kenya Medical Practitioners Pharmacists and Dentists Union & 2 others; Meru County Public Service Board & 2 others (Interested Parties) (Constitutional Petition E004 of 2024) [2024] KEELRC 2449 (KLR)
The bottom line
#A Kenyan court declared the Meru doctors' and nurses' strike unlawful, but refused to punish the unions because the county government broke its own agreements.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the County Government to petition against the unions' strike
The petitioner has locus standi under Articles 22 and 258 as it alleges violations of Bill of Rights (Articles 26, 28, 43, 47) affecting Meru residents
Article 22(2) permits a person acting in the public interest or in the interest of a group to institute proceedings claiming breach of the Bill of Rights; Article 258 extends this to constitutional contraventions. The petition alleges that the prolonged strike violates Articles 26, 28, 41, 43 and 47, all in the Bill of Rights. The court, supported by Mumo Matemu's enlarged view of standing, found the petitioner entitled to sue.
Competence of the petition (Anarita Karimi Njeru threshold)
The petition meets the Anarita Karimi Njeru precision threshold since paragraphs 28 and 29 plead the provisions violated and the manner of violation
The Anarita Karimi Njeru standard requires a party seeking constitutional redress to set out with reasonable precision the complaint, the provisions said to be infringed, and the manner of infringement. On perusal, the petition's paragraphs 28 and 29 gave particulars of the constitutional provisions allegedly violated and how the strike violated them.
Lawfulness of the strike in an essential service and violation of Bill of Rights
The strike contravened section 81(3) of the Labour Relations Act and violated Articles 26, 28 and 43(1)(a); no minimum service was maintained
Section 81(3) of the LRA prohibits strikes in essential services, and that limitation is justifiable under Article 24. The right to strike under Article 41(2)(d) is qualified. The respondents withdrew all services including emergency care, and their claim that some officers remained on duty was unsubstantiated as no list of such officers was filed or served. The strike therefore violated the rights to life, dignity and health of Meru residents.
Whether the strike was justified
The grievances were genuine and just, but circumstances changed: salaries were paid, promotions commenced and budgetary allocation approved, so the strike is no longer justified
Although the reasons in the strike notices were genuine given the petitioner's breach of the 2023 agreements, evidence showed meetings on 29th and 30th August 2024, salaries paid (albeit using borrowed funds), and the promotion process commenced with budgetary allocation approved for the financial year. The grievances have been or are being addressed by the petitioner and the CPSB, removing the justification for continuing the strike.
Whether mandamus could issue to compel resumption of work
Mandamus cannot issue against the striking workers as it applies in public law against public bodies or offices; instead the strike was declared unprotected and workers must report back
The court declined to grant the mandamus sought because the writ operates in the province of public law against public bodies or offices, and its application had not been extended to the circumstances of the suit. Nevertheless, the strike being unprotected under section 81(3) LRA, the health officers were required to report back to work with immediate effect.
Legal principles established
#- Under Kenyan law as it stands, the right to go on strike in essential services is prohibited under section 81 of the Labour Relations Act until that law is changed to provide for minimum service during strikes
- A strike in an essential service without retention of minimum service violates Articles 26, 28 and 43(1)(a) of the Constitution
- Article 22 and 258 of the Constitution confer an enlarged view of locus standi allowing a party acting in the public interest to sue
Court orders
#- 1.A declaration that the continuation or participation in any way of the strike by the Meru County healthcare workers called by KMPDU, KUCO and KNUN vide strike notices dated 1st August 2024, 15th July 2024 and 18th July 2024 respectively is unlawful
- 2.A declaration that the continued participation by the Meru County healthcare workers in the strike called by the 1st, 2nd and 3rd Respondents is unlawful for violating the rights of the residents of Meru County under Articles 26, 28 and 43 of the Constitution of Kenya, 2010
- 3.No order as to costs - each party to bear its own costs (the court declined to condemn the respondents to pay costs since the strike was necessitated by the petitioner's fault)
- Jurisdiction invoked
- Articles 22, 258 and 165 of the Constitution of Kenya, 2010 (enforcement of the Bill of Rights); Article 162(2) via the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Meru v Kenya Medical Practitioners Pharmacists and Dentists Union & 2 others; Meru County Public Service Board & 2 others (Interested Parties) (Constitutional Petition E004 of 2024) [2024] KEELRC 2449 (KLR)", Case Analysis (2024). Petition dated 10th September 2024 (ELRC, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2449/eng@2024-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.