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Case Brief · caselaw.co.ke
ELRCPartially AllowedEldoret ELRC Petition No E003 of 2024 (consolidated with Eldoret ELRC Petition No E005 of 2024, Nairobi ELRC Petition No E042 of 2024, Nairobi ELRC Cause No E244 of 2024 and Nairobi Petition No E051 of 2024)· [2024] KEELRC 2506 (KLR)

Mike & 7 others v Salaries and Remuneration Commission & 40 others; Kenya Medical Practitioners, Pharmacists and Dentists' Union & 79 others (Interested Parties) (Petition E003, E005, E042 (NRB) & E051 of 2024 & Cause E244 (NRB) of 2024 (Consolidated)) [2024] KEELRC 2506 (KLR)

Employment and Labour Relations Court
17 October 2024
15,956 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~64 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld reduced healthcare intern stipends but ordered the Ministry of Health and doctors' union to renegotiate the interns' pay clause within 90 days.

What this practically means

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Executive summary

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Five suits - Eldoret ELRC Petitions E003 and E005 of 2024, Nairobi ELRC Petition E042 of 2024, Nairobi Cause E244 of 2024 and Nairobi Petition E051 of 2024 - were consolidated and heard together, challenging the SRC letter of March 13, 2024 advising the Ministry of Health on stipends for healthcare interns (ranging from Kshs 27,000 to a maximum of Kshs 70,000), a reduction from prior CBA rates of about Kshs 206,000. The court held that the SRC advice was a special review under sections 7, 26 and 27 of the SRC Regulations, prompted by Treasury's advice that existing rates were neither affordable nor fiscally sustainable; no mandatory consultation was required and the advice violated none of the provisions cited. The reduction in stipend between cohorts was justified on budgetary grounds and did not constitute prohibited discrimination under article 27. The CBA favourable to medical interns was not discriminative against other graduate interns. Section 61 of the Labour Relations Act was found constitutional, as the Minister's role is to make regulations only where no CBA exists. Petitions E042, E051 and E005, and Cause E244, were dismissed for failure to meet the constitutional petition threshold or lack of demonstrated locus. Recognising the conflict between the SRC advice and the CBA on intern remuneration, the court directed the Ministry and the Union to negotiate that CBA clause within 90 days, with existing posting arrangements to stay in place meanwhile. Each party was ordered to bear its own costs given the public nature of the suits.

Key legal issues

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01

Validity of the SRC advice of March 13, 2024 on stipends for healthcare interns

Holding

The advice was well founded, being a special review under sections 7, 26 and 27 of the SRC Regulations prompted by budgetary constraints, with no requirement of mandatory consultation

Reasoning

The court found the process was not a regular cyclical review under sections 4, 5, 6, 8, 9, 10, 12 and 17 of the Regulations but a special review requested by the Ministry of Health based on the financial situation. Treasury had advised that existing stipend rates were neither affordable nor fiscally sustainable. No mandatory consultation is required under sections 7, 26 and 27, and the advice did not itself review the CBA.

p. 33
02

Whether the reduction of stipends for the new cohort constituted discrimination under article 27

Holding

The negative difference between cohorts was justifiable on budgetary reasons and did not constitute prohibited discrimination

Reasoning

Not every differentiation amounts to discrimination; discrimination requires differential treatment without objective or reasonable justification. The Public Finance Management Act prohibited expenditure in excess of budgetary allocation, leaving the Ministry the choice of taking fewer interns or reducing the stipend. Reducing the stipend accommodated more interns within the available budget and was objectively justified.

p. 40
03

Whether the CBA favourable to medical interns is discriminative against other graduate interns

Holding

No discrimination established; freedom of association and CBA negotiation are available to any category of employees as a right

Reasoning

Article 41 guarantees every trade union the right to engage in collective bargaining, and no intern was shown to have been prevented from exercising those rights. Policies exist on stipends for other interns, and the CBA provision for medical interns was not shown to be unfair or discriminative.

p. 40
04

Constitutionality of section 61 of the Labour Relations Act

Holding

Section 61 is constitutional; the Minister's power is to make regulations where no CBA covers the employees, not to set terms and conditions as PSC does

Reasoning

The court held there was no conflict between the Minister's specific role under section 61 and the role or powers of the PSC. The section only applies where employees are not covered by any CBA, and the petitioners' interpretation was not in conformity with the wording of the section.

p. 42
05

Conflict between the SRC advice and the CBA on intern remuneration

Holding

Since the CBA has been reviewed and agreement reached on all issues except intern remuneration, the parties were directed to negotiate that clause within 90 days, with existing posting arrangements to remain in place meanwhile

Reasoning

The court identified a conflict between the SRC advice and the CBA which provides intern remuneration at Job Group L rates. Rather than strike down either instrument, the court directed negotiations under the CBA's own machinery, taking judicial notice of the posting agreement between the Ministry and the Union.

p. 42

Legal principles established

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  • Differential treatment does not necessarily amount to discrimination; discrimination arises where equal classes of people are subjected to different treatment without objective or reasonable justification or proportionality between aim and means
  • In the absence of a scheme of service or policy document specifying the amount payable to medical interns for comparison, a petitioner cannot plead discrimination based on the rates in a CBA applicable to a previous cohort
  • A special review of remuneration requested by a public body based on budgetary constraints falls under sections 7, 26 and 27 of the SRC Regulations, which do not require mandatory consultation, and not under the cyclical four-year review provisions
  • A constitutional petition must set out with reasonable precision the provisions infringed and the manner of infringement

Court orders

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  1. 1.The parties (Ministry of Health and the Union) are directed to commence negotiation of the remuneration clause of the CBA in the manner provided in article 1 of the CBA within the next 90 days
  2. 2.The arrangements pursuant to which interns have already been posted shall stay in place until the parties conclude the negotiations or come to an agreement
  3. 3.Petition No E005 of 2024 is dismissed
  4. 4.Petition No E042 of 2024 is dismissed
  5. 5.Petition No E051 of 2024 is dismissed
  6. 6.Cause No E244 of 2024 is dismissed
  7. 7.Each party shall bear its own costs
Jurisdiction invoked
Articles 22, 23, 162(2) and 258 of the Constitution; jurisdiction of the Employment and Labour Relations Court

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, "Mike & 7 others v Salaries and Remuneration Commission & 40 others; Kenya Medical Practitioners, Pharmacists and Dentists' Union & 79 others (Interested Parties) (Petition E003, E005, E042 (NRB) & E051 of 2024 & Cause E244 (NRB) of 2024 (Consolidated)) [2024] KEELRC 2506 (KLR)", Case Analysis (2024). Eldoret ELRC Petition No E003 of 2024 (consolidated with Eldoret ELRC Petition No E005 of 2024, Nairobi ELRC Petition No E042 of 2024, Nairobi ELRC Cause No E244 of 2024 and Nairobi Petition No E051 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2506/eng@2024-10-17

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