Bwanchete v Chief Officer Medical Services, Public Health & Sanitation Kisii County & 2 others (Judicial Review E019 of 2024) [2024] KEELRC 2660 (KLR)
The bottom line
#A Kenyan court dismissed a doctor's bid to reverse his transfer because it was tied to a strike already declared illegal and the transfer had already happened.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court has jurisdiction in light of the exhaustion doctrine and the alternative appeal mechanisms under section 77 of the County Governments Act and section 9 of the Fair Administrative Actions Act
- 2.Whether the Applicant's transfer to Nyamache Sub-County Referral Hospital was unprocedural and should be quashed
- 3.Whether the withholding of the Applicant's April salary during the strike was unlawful
- 4.Whether the application is moot or founded on action declared illegal following the determination of the strike in Cause E016 of 2024
- 5.Whether the Applicant is guilty of material non-disclosure
Key legal issues
#Whether the application could survive after the strike was declared illegal and the transfer had taken effect
The application was dismissed because it was founded on industrial action declared illegal and sought to stop a completed transfer
The Court held that the action impugned was founded on conduct the Court had already declared illegal in Kisumu ELRC Cause No. E016 of 2024, so it was 'fruit of a poisonous tree' and could not ground relief. The transfer had already occurred, so the application sought to stop something that had already happened. The Applicant should have withdrawn the application once the strike was declared illegal; having failed to do so, the Court dismissed it, awarding no costs to preserve industrial peace.
Legal principles established
#- Action founded on something a court has declared illegal cannot be the basis of a claim for relief
- Court orders cannot issue to stop an act that has already occurred
Court orders
#- 1.The Judicial Review application is dismissed
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (implicit; the Respondent challenged the Court's jurisdiction on exhaustion grounds)
Relief refused
#Certiorari/review of the transfer and other reliefs sought in the motion
The application sought to stop what had already happened, was founded on industrial action declared illegal, and was dismissed in the interests of industrial peace
Costs
Each party will bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Judicial Review application is one based on action that was founded on something the Court declared illegal and therefore not protected vide Kisumu ELRC Cause No. E016 of 2024.
The fruit of a poisonous tree is itself poisonous. As such it cannot be the basis of action to seek relief or remedy.
Having failed to do so, it is the Court's duty to dismiss the Judicial Review alongside the application filed herein. In the interests of industrial peace and harmony, each party will bear their own costs. It is so ordered.
Issues in the judgment
#The Court does not expressly rule on the Respondent's jurisdiction/exhaustion objection; the disposition rests on mootness and illegality without addressing the competing submissions on jurisdiction
Case number of the application is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bwanchete v Chief Officer Medical Services, Public Health & Sanitation Kisii County & 2 others (Judicial Review E019 of 2024) [2024] KEELRC 2660 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2660/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.