[2019] KEELRC 1747 (KLR)
The court found that the issues raised in the preliminary objection, particularly those relating to the Health Act No. 21 of 2017 and the alleged procedural improprieties, are factual in nature and cannot be resolved by a mere examination of the law without calling evidence. As such, these issues do not constitute...
Source-derived case information.
- Citation
- [2019] KEELRC 1747 (KLR)
- Parties
- Applicant: Health Systems Management Association of Kenya; Respondent: Kenyatta National Hospital Board; Interested Party: Deloitte Consulting Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 1 of 2019
- Procedural Posture
- Judicial Review / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- HS Wasilwa
- Legal Topics
- Preliminary Objection, Health Sector Employment, Statutory Compliance, Unfair Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Health Systems Management Association of Kenya
Applicant
Kenyatta National Hospital Board
Respondent
Deloitte Consulting Limited
Interested Party
Procedural Posture
Judicial Review / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the preliminary objection raises pure points of law that can dispose of the suit at this stage.
- 2 Whether the issues raised require factual evidence beyond the scope of a preliminary objection.
- 3 Whether the provisions of the Health Act No. 21 of 2017, Third Schedule, have force of law in the context of the dispute.
Ratio Decidendi
The court found that the issues raised in the preliminary objection, particularly those relating to the Health Act No. 21 of 2017 and the alleged procedural improprieties, are factual in nature and cannot be resolved by a mere examination of the law without calling evidence. As such, these issues do not constitute pure points of law suitable for determination by way of a preliminary objection. The court held that the preliminary objection was not merited and dismissed it, allowing the main case to proceed to hearing on its merits.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- The main case shall proceed to hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
JUDICIAL REVIEW NO. 1 OF 2019
(Before Hon. Lady Justice Hellen S. Wasilwa on 2nd May, 2019)
HEALTH SYSTEMS MANAGEMENT
ASSOCIATION OF KENYA..............................................APPLICANT
VERSUS
KENYATTA NATIONAL HOSPITAL BOARD...1ST RESPONDENT
DELOITTE CONSULTING LIMITED...........INTERESTED PARTY
RULING
1. The application before Court is the Preliminary Objection filed by the 1st Respondent herein on 28/1/2019 and premised on the grounds that:-
1. The suit is neither premature, nor incompetent, nor defective in any discernible way, and therefore does lie, in that it relates to constitutional and statutory violations and unfair administrative action on the part of the 1st Respondent.
2. The recruitment noticed published by the 1st Respondent is illegal, irrational, irregular, procedurally improper and unreasonable, the basis whereof is set out in the Applicant’s Application.
3. The provisions of the Health Act, No 21 of 2017 ostensibly offended are mere notes in a Schedule and accordingly do not have any force of law.
2. The Preliminary Objection in essence raises issues related to the Health Act No. 21 of 2017, Third Schedule which are in my view factual issues. These issues will not be resolved by mere examination of the provisions of the law without calling evidence.
3. The principle in Mukisa biscuit Manufacturing Company Limited vs West End Distributors Limited (1969) EA 696 is that:-
“A Preliminary Objection consist of a pure point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit Exparte are objection to the jurisdiction of the Court or a plea of invitation or submissions that the Parties are bound by the contract giving rise to the suit to refer to arbitration…”
4. In the current application, issue of prematurity of the case are not pure points of law. These would need the Parties to submit facts in evidence and this goes behold the scope of a Preliminary Objection.
5. I believe the application is therefore not merited as a Preliminary Objection and I therefore proceed to dismiss it accordingly and order the main case to proceed.
Dated and delivered in open Court this 2nd day of May, 2019.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Otieno for Applicant – Present
Respondent – Absent