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ELRCPartially AllowedNairobi ELRC Cause No. 731 of 2019 (Lead File)· [2024] KEELRC 2595 (KLR)

County Government of Vihiga & 6 others v Kenya National Union of Clinical Officers & 15 others; Ministry of Labour & Social Protection & 2 others (Interested Parties) (Employment and Labour Relations Cause 731 & Meru 42 of 2019 & Nyeri 8 of 2020 & Cause E6605 & E041 of 2021 & E6538 of 2020 & Miscellaneous Case 004 of 2021 & Petition 208 of 2020 & 211 of 2019 (Consolidated)) [2024] KEELRC 2595 (KLR)

Employment and Labour Relations Court
24 October 2024
MOMaureen Onyango
3,604 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 ruled clinical officers and nurses provide essential services, so their strikes were unlawful under section 81 of the Labour Relations Act.

What this practically means

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Executive summary

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This consolidated judgment of the Employment and Labour Relations Court at Nairobi, delivered by Maureen Onyango, J on 24th October 2024, resolves multiple suits arising from nationwide strikes by members of the Kenya National Union of Clinical Officers and the Kenya National Union of Nurses pursuant to strike notices of 25th and 28th October 2019 and 23rd November 2020. By directions of 24th February 2021 all related cases were transferred to Nairobi and consolidated, with Nairobi ELRC Cause No. 731 of 2019 as the lead file. County governments (Vihiga, Machakos, Meru, Kisii), the Cabinet Secretary for Health and the unions sought competing declarations, injunctions and protective orders. The court confined itself to issues still alive, noting most disputes had been overtaken by events, and framed two issues: whether the union members provide essential services and, if so, whether the strike was justified. The court held that the members provide essential services under section 81 of the Labour Relations Act; that the right to strike under Article 41(2)(d) is not absolute and may be limited under Article 24(1); and that the statutory prohibition of strikes in essential services is a reasonable and justifiable limitation, since denial of healthcare would amount to cruel, inhuman or degrading treatment protected absolutely under Article 25. The strikes of 30th October 2019 and 7th December 2020 were declared unprotected and unlawful. Each party was ordered to bear its own costs. The court also urged legislative review of the Act to harmonize it with the Constitution.

Key legal issues

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01

Whether clinical officers and nurses provide essential services within the meaning of section 81 of the Labour Relations Act

Holding

Yes - the members of the Respondents provide essential services, as their interruption of services would endanger the life and health of the population

Reasoning

Section 81(1) defines essential services as a service the interruption of which would probably endanger the life of a person or the health of the population. The court found it undisputed that the 1st Respondent's members provide health services, and made a declaration to that effect.

p. 10
02

Whether section 81 of the Labour Relations Act, which prohibits strikes in essential services, is unconstitutional for limiting the right to strike under Article 41(2)(d)

Holding

The prohibition is a constitutionally valid limitation under Article 24(1) and the strike was therefore unprotected and unlawful

Reasoning

The right to strike is not among the absolute rights in Article 25 and may be limited. Drawing on ILO standards permitting restrictions in essential services, the court held that denial of the highest attainable standard of health and emergency medical treatment would subject persons to cruel, inhuman or degrading treatment, ranking higher than the right to strike; the limitation is reasonable and justifiable in an open democratic society.

p. 10
03

Whether the strikes of 30th October 2019 and 7th December 2020 were protected

Holding

They were unprotected strikes in violation of section 81 of the Labour Relations Act

Reasoning

Having held that the members provide essential services and that the statutory prohibition is valid, the court declared both strikes unprotected. The court also observed a need for legislative review of the Act to harmonize it with the Constitution and provide dispute resolution mechanisms in essential services where strikes are not permitted.

p. 11

Legal principles established

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  • The right to strike is not an absolute right and may be limited under Article 24 of the Constitution
  • The prohibition of strikes in essential services under section 81 of the Labour Relations Act is a reasonable and justifiable limitation of the right to strike
  • Sections 78 and 81 of the Labour Relations Act are mandatory provisions
  • A strike by members engaged in the provision of essential services without complying with the Labour Relations Act is unprotected and unlawful

Court orders

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  1. 1.A declaration that the members of the Respondents provide an essential service
  2. 2.A declaration that the strike called by the Respondents on 30th October 2019 and on 7th December 2020 was unprotected as it was in violation of section 81 of the Labour Relations Act which prohibits strikes in essential services
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 24(1)
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 41(2)(d)
  • Labour Relations Act, 2007Sections 76, 78, 81
  • Labour Relations Act, 2007Fourth Schedule
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes and employment causes; consolidated by court directions issued on 24th February 2021 transferring all related cases to Nairobi for consolidation

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, "County Government of Vihiga & 6 others v Kenya National Union of Clinical Officers & 15 others; Ministry of Labour & Social Protection & 2 others (Interested Parties) (Employment and Labour Relations Cause 731 & Meru 42 of 2019 & Nyeri 8 of 2020 & Cause E6605 & E041 of 2021 & E6538 of 2020 & Miscellaneous Case 004 of 2021 & Petition 208 of 2020 & 211 of 2019 (Consolidated)) [2024] KEELRC 2595 (KLR)", Case Analysis (2024). Nairobi ELRC Cause No. 731 of 2019 (Lead File). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2595/eng@2024-10-24

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