Kenya National Union of Nurses & another v Cabinet Secretary, Ministry of Health & 95 others; Attorney General (Interested Party) [2021] KEELRC 2307 (KLR)

THE COUNTY GOVERNMENT OF KITUI………………………………....18TH RESPONDENT THE COUNTY GOVERNMENT OF MACHAKOS…………………………19TH RESPONDENT THE COUNTY GOVERNMENT OF MAKUENI……………………………20TH RESPONDENT THE COUNTY GOVERNMENT OF NYANDARUA…………...……………21ST RESPONDENT THE COUNTY GOVERNMENT OF NYERI……...………………………....22ND RESPONDENT THE COUNTY GOVERNMENT OF KIRINYAGA…………………….……23RD RESPONDENT THE COUNTY GOVERNMENT OF MURANG’A…………………....……..24TH RESPONDENT THE COUNTY GOVERNMENT OF KIAMBU………………………..….….25TH RESPONDENT THE COUNTY GOVERNMENT OF TURKANA……………………….……26TH RESPONDENT THE COUNTY GOVERNMENT OF WEST POKOT…………………..……27TH RESPONDENT THE COUNTY GOVERNMENT OF SAMBURU………………………...…..28TH RESPONDENT THE COUNTY GOVERNMENT OF TRANS NZOIA……………………......29TH RESPONDENT THE COUNTY GOVERNMENT OF UASIN GISHU……………………...…30TH RESPONDENT THE COUNTY GOVERNMENT OF ELGEYO MARAKWET……………...31ST RESPONDENT THE COUNTY GOVERNMENT OF NANDI………………………………....32ND RESPONDENT THE COUNTY GOVERNMENT OF BARINGO……………………………..33RD RESPONDENT THE COUNTY GOVERNMENT OF LAIKIPIA……………………………...34TH RESPONDENT THE COUNTY GOVERNMENT OF NAKURU……………………………....35TH RESPONDENT THE COUNTY GOVERNMENT OF NAROK………………………………...36TH RESPONDENT THE COUNTY GOVERNMENT OF KAJIADO……………………………...37TH RESPONDENT THE COUNTY GOVERNMENT OF KERICHO……………………………..38TH RESPONDENT THE COUNTY GOVERNMENT OF BOMET………………………………..39TH RESPONDENT THE COUNTY GOVERNMENT OF KAKAMEGA…………………………40TH RESPONDENT THE COUNTY GOVERNMENT OF VIHIGA………………………….….....41ST RESPONDENT THE COUNTY GOVERNMENT OF BUNGOMA…………………………...42ND RESPONDENT THE COUNTY GOVERNMENT OF BUSIA……………………….………...43RD RESPONDENT THE COUNTY GOVERNMENT OF SIAYA………………………………….44TH RESPONDENT THE COUNTY GOVERNMENT OF KISUMU………………………………45TH RESPONDENT THE COUNTY GOVERNMENT OF HOMABAY………………………....…46TH RESPONDENT THE COUNTY GOVERNMENT OF KISII…………………………………...47TH RESPONDENT

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THE COUNTY GOVERNMENT OF NYAMIRA………………………..……48TH RESPONDENT THE COUNTY GOVERNMENT OF NAIROBI…………………………....…49TH RESPONDENT THE COUNTY GOVERNMENT OF TANA RIVER……………………….....50TH RESPONDENT THE COUNTY GOVERNMENT OF MIGORI……………………………...…51ST RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF MOMBASA……….............52ND RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KWALE……………….......53RD RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF TAITA TAVETA….…........54TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KILIFI…………………….55TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF LAMU…………………......56TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF GARISSA………………....57TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF WAJIR……………….…....58TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF MANDERA…………….....59TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF MARSABIT……………....60TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF ISIOLO…………………....61ST RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF MERU…………….….........62ND RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF THARAKA NITHI…….....63RD RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF EMBU……………..………64TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KITUI……………….…….65TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF MACHAKOS……....……..66TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF MAKUENI…………....…..67TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF NYANDARUA……....……68TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF NYERI………………..…...69TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KIRINYAGA……...………70TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF MURANG’A……….......….71ST RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KIAMBU…………….........72ND RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF TURKANA……….…....…..73RDRESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF WEST POKOT……......….74TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF SAMBURU………......…...75TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF TRANS NZOIA…….....….76TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF UASIN GISHU….....….….77TH RESPONDENT

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THE COUNTY PUBLIC SERVICE BOARD OF ELGEYO MARAKWET…………………………………………………..…….78TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF NANDI………………..…..79TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF BARINGO…………..……80TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF LAIKIPIA…………….…..81ST RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF NAROK……………..……82ND RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF NAKURU………...….……83RD RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KAJIADO…………...……84TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KERICHO……………..….85TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF BOMET……………..…….86TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KAKAMEGA……...……..87TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF VIHIGA…………….…… 88TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF BUNGOMA…………....…89TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF BUSIA…………….………90TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF SIAYA…………….……….91ST RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KISUMU……………....….92ND RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF HOMABAY………....…….93RD RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF KISII………………………94TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF NYAMIRA……....……..…95TH RESPONDENT THE COUNTY PUBLIC SERVICE BOARD OF NAIROBI…………...….…96TH RESPONDENT AND THE HONOURABLE ATTORNEY GENERAL...........................................INTERESTED PARTY JUDGMENT Introduction 1. This consolidated judgment relates to three claims being; Cause No. E66 of 2021 and Cause No. E085 of 2021 instituted by Kenya National Union of Nurses and Cause No. E101 of 2021 instituted by Kenya National Union of Clinical Officers. 2. By an order of the Court issued on 25 th February 2021, the three claims were consolidated and Cause No. E085 of 2021 selected as the lead file. 3. The subject of these claims is communication dated 22 nd December 2020 from the Cabinet Secretary, Ministry of Health to the Cabinet Secretary Ministry of Public Service and Gender, indicating that the Ministry and the County Governments would “not play the agency role of remitting union dues to the Unions in the Health Sector.” The 1st Claimant’s Case 4. In Cause No E066 of 2021, the 1st Claimant accuses the 1st Respondent

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of issuing an illegal Circular dated 22 nd December 2020 directing the 2 nd Respondent not to deduct and remit the union dues as the Ministry of Health and the County Governments would not play the agency role of remitting union dues to Trade Unions in the Health sector. 5. The 1st Claimant asserts that based on the said Circular, the 2 nd Respondent failed to deduct the union dues from the wages of Nurses who are members of the 1st Claimant and hence no remittance was made to the Union. 6. The 1st Claimant seeks the following remedies: a) An order quashing Circular Ref; MOH/HRM&D/IPPD/SM/(30) dated 22nd December 2020 issued by the Cabinet Secretary, Ministry of Health; b) An order stopping the implementation of the said Circular Ref; MOH/HRM&D/IPPD/SM/(30) dated 22nd December 2020; c) A declaration that the 1 st and 2nd Respondents either by themselves or through their servants, representatives, agents or assigns have no legal capacity to issue directives to County Public Service Boards interfering with employment, membership, remittance and or deduction of trade union dues from the 1st Claimant’s members; d) An order directing the 2nd Respondent to pay from its own funds any money lost by the 1 st Claimant in any County Government as a result of implementation of the Circular Ref; MOH/HRM&D/IPPD/SM/(30) dated 22nd December 2020; e) General damages. 7. The 1st Claimant’s case is that the impugned circular flies in the face of Section 48 of the Labour Relations Act and contravenes Legal Notice No. 160 of 2018 directing employers of its members to deduct and remit union dues. 8. The 1st Claimant avers that the 2nd Respondent’s failure to deduct and remit union dues is aimed at crippling union activities and interferes with the right of the members to participate in those activities. 9. In Cause No E085 of 2021, the 1st Claimant seeks the following reliefs: a) A declaration that the Cabinet Secretary and or any other person either by themselves or through their servants, representatives, agents or assigns, have no legal capacity to suspend or revoke a Legal Notice for Trade Union dues as issued by the Cabinet Secretary for Labour; b) An order quashing Circular Ref; MOH/HRM&D/IPPD/SM/(30) dated 22nd December 2020 issued by the Cabinet Secretary, Ministry of Health; c) An order directing the 1st and 2nd Respondents to pay all uncollected union dues from their own funds; d) General damages. 10. The 1st Claimant reiterates that the 1 st Respondent had issued an illegal Circular dated 22 nd December 2020 stopping deduction and remittance of union dues in favour of Trade Unions in the Health Sector. 11. The 1st Claimant further reiterates that there exists a Legal Notice issued by the Cabinet Secretary for Labour directing all employers of the members of the 1st Claimant Union to deduct and remit union dues and as such, the action by the 1 st and 2nd Respondents was in contravention of the Legal Notice as well as Section 48 of the Labour Relations Act. The 2nd Claimant’s Case 12. Vide an amended Memorandum of Claim dated 3rd March 2021, the 2nd Claimant seeks the following reliefs: a) An order quashing Circular Ref: MOH/HRM&D/IPPD/SM/ (30) dated 22nd December 2020 issued by the 1st Respondent; b) An order stopping the implementation of the Circular Ref: MOH/HRM&D/IPPD/SM/ (30) dated 22nd December 2020; c) An order directing the 1 st and 2nd Respondents to pay from their own funds any money lost by the 2 nd Claimant in any County Government as a result of implementation of the Circular Ref: MOH/HRM&D/IPPD/SM/ (30) dated 22nd December 2020; d) General damages. 13. The 2nd Claimant pleads that the Recognition Agreement between itself and the 1 st Respondent dated 18th February 2019, gives the 2 nd Claimant the locus Standi to act on behalf of Clinical Officers who are in the service of the National Government, 47 County Governments,

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Parastatals and State Corporations. 14. The 2nd Claimant argues that upon being served with check off forms, the 1 st Respondent and the County Governments had a statutory obligation to deduct and remit union dues in favour of the 2nd Claimant. 15. The 2nd Claimant further argues that the 1 st Respondent has no mandate to regulate the right to unionise, which is secured under Article 41 of the Constitution. 16. The 2nd Claimant adds that it is entitled to recruit, represent and receive monthly subscriptions from Clinical Officers who are employees of the 1st Respondent and the 47 County Governments. The Respondents’ Case 17. In their response to the claims, the 1 st, 2nd and 3rd Respondents describe the consolidated claims as frivolous, scandalous, and mischievous and an abuse of the court process and urge the Court to dismiss them with costs. 18. These Respondents state that the Claimants’ claims raise no triable and or reasonable cause of action as against the 1 st, 2nd and 3rd Respondents as no evidence has been adduced regarding the existence of an employment relationship with the National Government so as to hold the 1st, 2nd and 3rd Respondents responsible for failure to remit union dues in line with Section 48 of the Labour Relations Act. 19. The 1st, 2nd and 3rd Respondents state that the impugned Circular was issued after a consultative meeting between the Ministry of Health and the County Governments and as such there was no violation of Legal Notice No. 160 of 2018 or Section 48 of the Labour Relations Act. 20. It was also averred that the Claimants had misunderstood the aforesaid legal provisions by including the National Government as their members’ employer despite it being clear that the said members are employees of County Governments, save for those employed by Kenyatta National Hospital. 21. It was further averred that the County Governments are a distinct level of Government and it would be ridiculous for the Claimants to insist that the deduction of their union dues should be facilitated by the 2 nd Respondent and or the National Government. 22. The 1st, 2nd and 3rd Respondents maintain that it was in order for the Cabinet Secretary in the Ministry of Health to communicate the decision arrived at after a consultative meeting with all the stake holders vide his Circular dated 22 nd December 2020. They ask the Court to appreciate the role played by the Ministry of Health in providing policy direction towards strengthening devolution and efficient functioning of the Health Sector. Findings and Determination 23. Based on the pleadings and submissions filed by the parties, the following are the issues for determination: a) Whether the consolidated claims offend the res sub judice rule; b) The effect of the Circular dated 22nd December 2020; c) Whether the Claimants are entitled to the prayers sought. Res Sub Judice? 24. It was submitted on behalf of the 1 st, 2nd and 3rd Respondents that the Claimants’ claims are res sub judice on account Republic v Transition Authority & another Ex parte Kenya Medical Practitioners, Pharmacists & Dentists Union (KMPDU) & 2 others [2013] eKLR in which the Claimants were Ex Parte Applicants. 25. The doctrine of res sub judice was restated by the Supreme Court of Kenya in its decision in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR in the following terms: “The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

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26. The 1st, 2nd and 3rd Respondents argue that the claims herein are res sub judice on the basis that a similar suit was filed in Republic v Transition Authority & another Ex parte Kenya Medical Practitioners, Pharmacists & Dentists Union (KMPDU) & 2 others [2013] eKLR where the 1st and Claimants had sought to have the transfer of health services from the National Government to the County Governments, quashed. 27. I will say two things on this issue; first, the cited case has already been determined and second, the subject matter in the present claims, being the legality of a circular stopping deduction and remittance of union dues does not have even the remotest connection with the subject matter in the Transition Authority Case (supra). There is nothing more to say on this issue and I will therefore let it rest. The Circular 28. On 22nd December 2020, the Cabinet Secretary, Ministry of Health wrote to his Counterpart in the Ministry of Public Service and Gender as follows: “Dear Waziri, RE: STOPPAGE OF REMITTANCE OF UNION DUES Arising from the consultative meeting held between the Ministry of Health and Council of Governors on 21 st December 2020, it was decided that with effect from the date of this letter, the Ministry and the County Governments will not play the agency role of remitting union dues to the Unions in the Health Sector. Kindly facilitate. Yours Sincerely (signed) SEN. MUTAHI KAGWE, EGH, CABINET SECRETARY Copy to: H.E Hon. Wycliffe Oparanya, EGH, Council of Governors, Delta House NAIROBI Principal Secretary Ministry of Health.” 29. This letter is what is variously referred to as the ‘the Circular’ or ‘impugned Circular’ in this judgment and is the subject of the present claims. 30. In advancing their case, the Claimants relied heaving on Section 48 of the Labour Relations Act of 2007 which provides inter alia: 48 .(1) ……………………………………………………………………………………………. (2) A trade union may, in the prescribed form, request the Minister to issue an order directing an employer of more than five employees belonging to the union to(a) deduct trade union dues from the wages of its members; and (b) pay monies so deducted – (i) into a specified account of the trade union; or (ii) in specified proportions into specified accounts of a trade union and a federation of trade unions. (3) An employer in respect of whom the Minister has issued an order under subsection (2) shall commence deducting the trade union dues from an employee’s wages within thirty days of the trade union serving a notice in Form S set out in the Third Schedule signed by the employees in respect of whom the employer is required to make a deduction.

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(4) The Minister may vary an order issued under this section on application by the trade union. 31. In the instant cases, it is not in dispute that there exists a Ministerial Order contained in Legal Notice No. 160 of 2018, directing employers of the Claimants’ members to deduct and remit union dues to the 1 st and 2nd Claimants. 32. The only question to ask therefore is whether the impugned Circular could halt or even revoke the said Ministerial Order. 33. Section 50 of the Labour Relations Act,2007 provides: 50. (1) Any amount deducted in accordance with the provisions of this Part shall be paid into the designated trade union, or employers’ organisation account within ten days of the deduction being made. (2) The Minister may revoke or suspend a notice issued in accordance with this Part if the Minister has reason to believe that? (a) the order was obtained by misrepresentation or fraud; (b) the money is not being paid into the designated account; or (c) the money is being used for a purpose other than the lawful trade union or federation activities. 34. In Kenya National Union of Nurses v Kilifi County Public Service Board & others [2019] eKLR Rika J dealt with a similar matter and affirmed the law in the following terms: “Governor Oparanya’s circular seeks to undo Legal Notice No. 160 of 2018. It is completely illegal. Once a Ministerial Order has issued under Section 48 of the Labour Relations Act, an Employer must [the word used in the law is shall] commence deductions. The Legal Notice can only be revoked or suspended by the issuing Labour Cabinet Secretary under Section 50 [2] of the Labour Relations Act, if he is satisfied that: a) The Order was obtained by misrepresentation or fraud; b) Money is not being paid into the designated account; or c) The money is being used for a purpose other than the lawful Trade Union or Federation activities. There is no room for a Governor to vary, revoke or suspend an Order issued by the Cabinet Secretary for Labour under Section 48 of the Labour Relations Act. Even the Cabinet Secretary for Labour is circumscribed in his power to suspend or revoke an Order, as shown at paragraph 20 above.” 35. I am completely persuaded and do not need to say more. The Circular dated 22 nd December 2020 flew in the face of clear statute law and was therefore null and void and of no legal consequence. No amount of consultation could save it. Remedies 36. Pursuant to the foregoing findings and conclusions, I make the following orders: a) Circular Ref: MOH/HRM&D/IPPD/SM/ (30) dated 22nd December 2020 is hereby quashed; b) Implementation of the said Circular Ref: MOH/HRM&D/IPPD/SM/(30) dated 22nd December 2020 is hereby stopped; c) A declaration is hereby issued that the 1 st and 2nd Respondents have no legal capacity to issue directives to County Public Service Boards regarding deduction and remittance of trade union dues on account of the Claimants’ members. d) The claim for payment of money lost as a result of Circular Ref: MOH/HRM&D/IPPD/SM/(30) dated 22nd December 2020 was not proved and therefore fails. 37. Each party will bear their own costs. DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF NOVEMBER 2021

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LINNET NDOLO JUDGE Appearance: Miss Wangare for the 1st Claimant Mr. Kumutai h/b Mr. Kataka for the 2nd Claimant Miss Odhiambo h/b Miss Akuno for the 2nd - 4th Respondents and Interested Party Mr. Wabuko h/b Miss Mbaka for the 40th Respondent

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