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ELRCStruck OutPetition dated 12.04.2024 (filed at Kitale; transferred to ELRC by order of 18.04.2024)

Rasugu v Cabinet Secretary Ministry of Health & 2 others (Petition E066 of 2024) [2025] KEELRC 1620 (KLR)

Employment and Labour Relations Court
29 May 2025
1,544 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner, a 64-year-old retired senior citizen acting in person and in the public interest, petitioned the Employment and Labour Relations Court claiming that the 1st and 2nd respondents' failure to implement the 2017 Collective Bargaining Agreement caused the doctors' and clinical officers' strike, violating his constitutional rights to life, equality, dignity, freedom from cruel and degrading treatment, health, emergency medical treatment and consumer protection. He sought a declaration of unconstitutionality, mandamus to implement the CBA, compensation and general damages, and costs. The respondents entered appearance through the Attorney General but filed no response. The Court held that the petitioner had not shown by evidence that a strike occurred in circumstances of the respondents' failure to implement the CBA, had not linked the respondents to his alleged predicament, and had not proved he was a patient at the material time. The Court further reasoned that breach of a CBA or contract of service must be remedied by the parties privy to it, and that third-party consequences of such breach fall outside the Court's employment and labour relations jurisdiction. Significantly, the Court cautioned that a court should not determine a litigant's fate on a suo motu finding of lack of jurisdiction without first according a hearing, grounded in litigant autonomy and natural justice. The petition was struck out with no costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' failure to implement the 2017 CBA, resulting in the doctors' and clinical officers' strike, violated the petitioner's constitutional rights to life, health, dignity, equality and freedom from cruel, inhuman and degrading treatment
  2. 2.Whether the petitioner, being neither a party to nor privy to the 2017 CBA, can obtain remedies in this Court for breach of the CBA
  3. 3.Whether the Court may strike out the petition suo motu on jurisdictional grounds without first hearing the parties

Key legal issues

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01

Whether the petitioner proved the constitutional violations alleged

Holding

The petition failed on the evidence; the petitioner did not prove the strike, the respondents' breach of the CBA, or that she was a patient affected by it

Reasoning

The respondents entered appearance through the Attorney General but filed no response. The Court nevertheless examined the material on record and found no evidential link between the alleged breach of the 2017 CBA and the petitioner's alleged predicament, nor proof that she was a patient at the material time. The alleged violations of Articles 26, 27, 28, 29, 43 and 46 therefore were not established on the evidence.

p. 3
02

Whether the Court has jurisdiction over a third-party claim founded on breach of a CBA

Holding

No; the petitioner was not privy to the CBA and claims by third parties for breach of a contract of service fall outside the Court's jurisdiction

Reasoning

The Court reasoned that performance management of public contracts of service is a human resource matter within its jurisdiction in an appropriate case, but breach of a CBA or individual contract of service is for the parties privy to it. Third-party consequences of such breach - such as enterprise liability to clients or customers - lie outside employment and labour relations and outside the Court's remit.

p. 4
03

Whether a court may strike out a suit on a suo motu jurisdictional finding without a hearing

Holding

Good practice and the principles of natural justice require that the litigant be heard on the jurisdictional issue before the suit is determined

Reasoning

Although the Court struck out the petition, it cautioned that a court cannot, on its own motion and without delving into the subject matter, find a lack of jurisdiction and determine the litigant's fate. Litigant autonomy, ownership of the dispute, and fair hearing principles require the initiating party (and any served party) to be given a chance to persuade the Court on jurisdiction.

p. 4

Legal principles established

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  • Breach of a collective bargaining agreement or contract of service can only be remedied by the parties privy to it; third-party consequences fall outside the employment and labour relations court's jurisdiction
  • A court should not determine the fate of a suit on a suo motu finding of lack of jurisdiction without first according the litigant an opportunity to be heard on the jurisdictional issue

Court orders

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  1. 1.The petition is struck out with no costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
High Court
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes; petition transferred from the High Court by order of 18.04.2024

Relief refused

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Declaration that the failure to implement the 2017 CBA was unconstitutional, null and void ab initio

The petitioner did not prove the strike or link the respondents' alleged breach to her alleged predicament; breach of a CBA is a matter for the parties privy to it

p. 3

Order of mandamus directing implementation of the 2017 CBA

The petition was struck out for want of proof and lack of jurisdiction over third-party claims arising from breach of a CBA

p. 4

Compensation and general damages for pain and suffering

No evidence that the petitioner was a patient at the material time or that the respondents caused her alleged injury

p. 3

Costs

No costs - each party to bear own costs in effect; the petition was struck out 'with no costs'

Quotable passages

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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 petitioner has not shown by evidence that there was a strike and in circumstances that the respondents had failed to implement the CBA which afiected her right to access healthcare services as was alleged.
p. 3burden of proof on the petitioner
Consequences of breach of the contract of service or CBA to third parties, like in the instant case, would fall for remedy and determination outside the jurisdiction of the Court in the sense of the employer’s or enterprise liability to its customers or clients – clearly outside the realm of employment and labour relations.
p. 4jurisdiction over third-party claims for breach of a CBA
the litigant ought to be accorded an opportunity to persuade the Court about the jurisdictional issue, even where, in the Court’s preliminary opinion, it is considered that jurisdiction is lacking or is doubtful.
p. 4fair hearing on suo motu jurisdictional findings
In conclusion the petition is hereby struck out with no costs.
p. 4final orders

Issues in the judgment

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minor

The petition is described as filed by a male petitioner ('The petitioner is a Muslim, retired senior citizen aged 64 years') but the Court's reasoning repeatedly refers to the petitioner as female

minor

The respondents are referred to only as '1st and 2nd respondents' in the extracts reproduced; their names are not stated in the judgment text available

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, "Rasugu v Cabinet Secretary Ministry of Health & 2 others (Petition E066 of 2024) [2025] KEELRC 1620 (KLR)", Case Analysis (2025). Petition dated 12.04.2024 (filed at Kitale; transferred to ELRC by order of 18.04.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1620/eng@2025-05-29

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