[2022] KEHC 10655 (KLR)

Kenya National Union Of Nurses (KNUN). v Director of Public Prosecutions & 3 others; Panyako & 10 others (Interested Parties) (Petition E126 of 2021) [2022] KEHC 10655 (KLR) (Constitutional and Human Rights) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10655 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition E126 of 2021

HI Ong'udi, J

June 17, 2022

IN THE MATTER OF ACTUAL BREACH AND/OR CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10, 20, 22, 23, 27, 37, 41, 49, 47, 50 AND 159 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 22, 77, AND 80 OF THE LABOUR RELATIONS ACT NO. 14 OF 2007 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015 AND IN THE MATTER OF AN APPLICATION BY THE KENYA NATIONAL UNION OF NURSES (KNUN) FOR AND ON BEHALF OF SETH AMBUSINI PANYAKO, JOSEPH WANYOIKE WANYAMBURA, EVANS MWENDWA MWALUKO, BONIFACE MUSYOKA NTHENGE, IVKY NDALEVA, JEREMIAH AYIRO, GLADYS KWAMBOKA, ROSE WANJIRU MUTHII, DOROTHY ANYANGO AYIEKO, JENNIFER KAGWIRIA MUNGANI, AND DAMARIS MUKIRI (HEREINAFTER REFERRED TO AS THE INTERESTED PARTIES) FOR INTER ALIA ORDERS OF JUDICIAL REVIEW BY WAY OF PROHIBITIONS, THE HONOURABLE ATTORNEY GENERAL AND THE KENYATTA NATIONAL HOSPITAL BOARD

Between

Kenya National Union Of Nurses (KNUN).

Petitioner

and

Director of Public Prosecutions

1st Respondent

Chief Magistrate, Milimani Law Courts

2nd Respondent

The Hon. Attorney General

3rd Respondent

Kenyatta National Hospital Board

4th Respondent

and

Seth Ambusini Panyako

Interested Party

Joseph Wanyoike Wanyambura

Interested Party

Evans Mwendwa Mwaluko

Interested Party

Boniface Musyoka Nthenge

Interested Party

Ivky Ndaleva

Interested Party

Jeremiah Ayiro

Interested Party

Gladys Kwamboka

Interested Party

Rose Wanjiru Muthii

Interested Party

Dorothy Anyango Ayieko

Interested Party

Jennifer Kagwiria Mungani

Interested Party

Damaris Mukiri

Interested Party

Judgment

1. The petitioner moved this court vide the petition and notice of motion dated April 13, 2021. Each was supported by the 1st interested party’s affidavit of even date. The application was brought pursuant to Articles 10, 20, 22, 23, 27, 37, 41, 49, 47, 50 and 159 of the Constitution of Kenya, sections 22, 77, and 80 the Labour Relations Act No 14 of 2007, sections 4 and 5 of the Fair Administrative Action Act, 2015and all other enabling provisions of the law. It sought for; conservatory orders staying the proceedings in Milimani Chief Magistrates Court, Criminal Cases Number 2055 of 2018 and 2065 of 2018 (criminal cases) pending the inter parties and hearing and determination of the application; stay of proceedings in Milimani Chief Magistrates Court, Criminal Cases Number 2055 of 2018 and 2065 of 2018 pending the hearing and determination of the petition; and costs of the application.

2. When the matter came up in court on May 25, 2021 for hearing, conservatory orders were issued staying the prosecution of the interested parties in the Criminal cases pending the hearing and determination of the instant petition.

3. The petitioner seeks the following reliefs in the petition:-a)A declaration that the fundamental rights and freedoms guaranteed to the interested parties especially under Articles 2, 3, 20(1), 20(2), 21(1), 22(1), 23(1), 27(1) (4) & (5), 37, 47(1) & (2), 50 (2) & (k) of the constitution have been contravened by the respondents.b)A declaration that section 22(a) of the Labour Relations Act No 14 of 2007 has been blatantly breached by the 1st respondent in preferring charges against the interested parties on account of a purely labour dispute.c)An order of prohibition do issue directed to the Director of Public Prosecution the 1st respondent herein prohibiting him, his agents, employees and servants from proceeding with the prosecution of the interested parties in Criminal case Number 2055 of 2018 and 2065 of 2018 in so far as the same relates to the alleged demonstration to champion for the nurses labour rights within the health facility.d)An order of prohibition do issue directed to the Chief Magistrate Milimani Commercial Court, Criminal Division the 2nd Respondent herein prohibiting him, his agents, employee and servants from proceeding with the prosecution of the interested parties in criminal case number 2055 of 2018 and 2065 of 2018 in so far as the same relates to alleged demonstration to champion for the nurses labour rights within the health facility.e)That an order of certiorari do issue to remove and bring to this Honourable Court for purposes of quashing the decision made by the Director of Public Prosecution, the 1st respondent herein to prefer charges, commencing with prosecution and prosecuting the interested parties in criminal case number 2055 of 2018 and 2065 of 2018. f)An order for damages in favor of the interested parties and against the respondents, jointly and severally for criminalizing a labour dispute and instigating unlawful criminal proceedings against them.g)Any other relief that this Honourable Court shall deem fit to grant in the circumstances.h)That costs of this petition be provided for.

The Petitioner’s case 4. A summary of the petitioner’s case is that in October 2018, the interested parties were charged with the offence of creating disturbance in a manner likely to cause breach of peace contrary to section 95(1) of the penal code and taking part in an unlawful assembly contrary to section 79 of the penal code. The events that triggered the charges were that Kenyatta National Hospital (KNH) nurses had planned a picketing session for October 29, 2018 for the reason that the management was against raising various concerns.

5. Before the picketing session, there was ongoing communication between the petitioner and the 4th respondent on various issues concerning nurses within the facility. Vide the petitioner’s letter dated October 18, 2018, the petitioner had agreed to send its leadership to attend a meeting at the 4th respondents on October 29, 2018, on the same matters.

6. On the material day, the CEOof the 4th respondent Dr. Thomas Mutie, called the 1st interested party for a meeting to sort out the issues about insecurity within the facility as well as recognition of the petitioner as a trade Union. Upon his arrival and in the company of the 2nd and 3rd interested parties, and on their way towards the office of the CEO, they were arrested and detained at the Kenyatta Police Post for several hours, later transferred to Capitol Hill Police Station, and finally Kilimani Police Station where they spent the night and were arraigned in court on October 30, 2018 and thereafter released on a free bond.

7. They claim that this was a purely labour issue as affirmed by the prosecution that the nurses were demonstrating so as to champion for their rights and recognition of the petitioner within the facility. To wit the evidence of PWI to PW5. On October 31, 2018 after the peaceful demonstrations, the petitioner and the 4th respondent had a meeting to discuss the emerging issues and they resolved to sort them as a joint team. One of such express resolutions, was that, no staff would be reprimanded for participating in the picketing on 29th and October 30, 2018. It was thus surprising that the 4th respondent pressed charges against the interested parties.

8. By reason of the aforesaid actions, the interested parties claim that the respondents contravened Articles 27 (3) and (4), 37, 41(2) (b)(c)(d), 47(1), 49(1)(h), 25, 50 (2)(b), 159 (2)(k) of the Constitution, Sections 4 and 5 of the Fair Administrative Action Act, 2015 and Section 22 of the Labour Relations Act, No 14 of 2007.

The 1st respondent’s case 9. The 1st respondent filed a replying affidavit by Berryl Marindah sworn on May 25, 2021 in which she raised the following:-i.The petitioner failed to satisfy the four principles applicable in applications for conservatory orders.ii.It was in the public interest that the criminal cases be heard to their logical conclusion. The prosecution had already tendered their evidence through six prosecution witnesses who were subjected to cross examination by the advocate for the petitioner and interested parties, case closed and, due for ruling before the High Court granted stay in Petition 81 of 2019 at the Employment and Labour Relations Court.iii.The grant of conservatory orders would further delay the criminal trials which had been stayed since March 12, 2019 without any justifiable reasons.iv.Courts are constitutionally bound under Article 159 (2) (b) to fast track the determination of matters.v.The petitioner and interested parties were barred by the doctrine of latches from grant of the conservatory orders sought being that they were charged on October 30, 2018, prosecution case heard only to move the court on May 14, 2019. Further the applicants failed to prove the unconstitutional exercise of prosecutorial powers. The applicants were entitled to an appeal if convicted and an intended appeal would not be rendered nugatory if criminal proceedings were not stayed; in any case a remedy lay in damages. It relied on Helmuth Rame v Republic, Criminal Application No 1 of 2015 for that argument.vi.Sections 356 and 357 of the Criminal Procedure Codeprovide for the suspension of any sentence and granting of bail pending appeal by both trial court and the High Court.vii.Relying on Anarita Karimi Njeru v Republic (1976 – 1980) KLR 1272 and Abuya Abuya v Independent Electoral and Boundaries Commission & another [2014] eKLR, High Court at Nairobi Constitutional Petition No 291 of 2013 it averred that the petitioner failed to plead with specificity the rights violated and the manner of their infringement.viii.Pursuant to Article 157 of the constitution, the Director of Public Prosecution had the power to prosecute and was only subject to the control of the court based on the principles of illegality, irrationality and procedural impropriety which the 1st respondent acted in accordance with the powers conferred upon by the law.ix.The petitioner failed to demonstrate how the police or the DPP acted unconstitutionally in carrying out duties. The police had a duty to investigate any complaint once made and to detect and prevent crime.x.The charges against the interested parties had no nexus of correlation with the labour issues highlighted in the petition. Further regarding denial of bail, the same did not amount to constitutional violation and it is determined on a cases to case basis.xi.The matters of disputed facts raised by the petition were purely within the jurisdiction and assessment of the trial court handling the criminal case and any intervention by the High Court before the conclusion of the case would be premature.xii.Lastly, the petitioners had options including the right of appeal, if he would be dissatisfied with the judgment of the trial court.

The 2nd & 3rd Respondents’ case 10. The 2nd and 3rd respondents filed the following grounds of opposition dated May 17, 2021:-i.The petitioner failed to demonstrate that the criminal proceedings in Criminal cases were premised on a labour dispute.ii.The petitioner failed to appreciate the duality of issues arising out of the alleged events of 29th, 30th and October 31, 2018. iii.The orders sought by the petitioner were spent as the hearings in the criminal cases had already been concluded.iv.The petitioner was estopped from raising issues of malicious prosecution arising out of a labour relations dispute in these proceedings as the same were not raised before the criminal court where they participated in the proceedings fully.v.The orders sought by the petitioner sought to interfere with the statutory mandate of the 2nd respondent to hear and determine cases in a timely manner and were in direct contravention of section 4 of the Magistrates Courts Act.vi.The petitioner was misguided and the application and petition herein were as a result of misunderstanding of the mandate of the magistrate’s court as well as the charges proffered in the Criminal cases.vii.The petitioner failed to meet the threshold for evidence as provided within section 107 of the Evidence Act which provides that he who alleges must prove.

The 4th respondent’s case 11. In response to the petition and notice of motion the 4th respondent filed grounds of opposition dated May 24, 2021 and Replying Affidavit by Dr. Evanson Kamuri sworn on June 4, 2021. Its case was that:-i.The petitioner did not seek and obtain leave prior to seeking the orders of prohibition and certiorari hence contravened Order 53 Rule 1 of the Civil Procedure Rules. It also did not comply with Section 9(2) and (3) of the Fair Administrative Action Act, 2015. ii.The petitioner was not entitled to the orders of certiorari as this court lacked the requisite jurisdiction to grant such orders as the said petition and notice of motion Application were filed outside the statutory period.iii.The KHN Board and management had never denied any of its employees the right to lawfully demonstrate, picket, and petition reasonable working conditions and or right to join a trade union or strike.iv.It admitted that by letter dated February 13, 2019, from the KHN Deputy Director- Human Resource, addressed to the Secretary General of Kenya National Union of Nurses; it was expressly acknowledged that KNUN members were members of KUDHEIHA, to which they were paying agency fees and that KNH Management had an existing collective Bargaining Agreement with KUDHEIHA.v.Vide a letter dated February 22, 2019 addressed to the Secretary General of KNUN, wherein the Chief Executive Officer’s Office requested for names of interim officials of the union. The letter further clarified the representatives of the union must be employees of the KNH Board of Management.vi.The staff who were arrested were in violation of the moratorium that was agreed upon between the KNH Management and representatives of the nursing staff during a consultative meeting that was held on October 30, 2018. In the said consultative meeting the nursing staff were allowed to picket on 29th and 30th October without reprimand. The petitioner failed to disclose the material facts that its members violated the moratorium put in place and therefore there was no violation of their constitutional and fundamental rights.vii.Notwithstanding violation of the said moratorium and unlawful picketing by members of the petitioner on October 31, 2021; KNH in strict compliance of the rules of natural justice and constitutional rights of the staff members held an disciplinary and advisory meeting on November 28, 2018 where staff members were given an opportunity to present their cases and defend themselves.viii.Article 37 must be enjoyed peacefully and by persons who are unarmed. That under Article 24, while critical to a free society, was not unlimited but subject to reasonable legislation, which in this case included the Public Order Act and the penal code which were within the meaning of that Article.ix.The state’s prosecutorial powers were vested in the Director of Public Prosecution under Article 157 of the constitution and the decision to institute criminal proceedings by the 1st respondent was discretionary and such exercise of power was not subject to the direction or control by any authority as stipulated by Article 157(10) of the constitutionand section 6 of the Office of the Director of Public Prosecution Act No 2 of 2013. x.He urged the court to consider and balance the interest, rights and duties not only of the petitioner and interested parties but all interest of the people of Kenya especially the sick, bed ridden and other hospital staff, in order to arrive at decision that achieves the ends of justice.xi.Regarding the application he reiterated the aforesaid paragraphs and argued that the petitioner had failed to establish and demonstrate a prima facie case and that the rights of its members had been violated. It was further not entitled to conservatory orders as it had failed to establish a prima facie case and any real and immediate danger its members were facing and therefore failed to satisfy the ingredients of necessary for permanent orders to be granted.xii.The petitioner was not entitled to the orders sought as it failed to disclose material facts as to the fact that the 1st interested party was not an employee of the 4th respondent at the time of the alleged arrest and therefore lacked the locus standi to file the said Notice of Motion and petition against the 4th respondent.xiii.The petitioner failed to disclose the fact that the petitioner did not have an existing recognition agreement with the 4th respondent the time of the alleged arrests and, therefore lacked a locus standi to file the said notice of motion. The recognition agreement tendered as evidence was a draft and did not contain any signature as parties were still negotiating on its terms. A recognition agreement between KNH and KNUN was signed on August 13, 2019. xiv.The alleged violent attacks against the nurses was not reported to the police and no such report was brought to the attention of KNH management.

The 1st Interested party’s case 12. The 1st interested party filed a replying affidavit sworn on June 4, 2021. He reiterated the contents of the petition is so far as the charging and arrest was concerned. He further deposed that the nurses of the 4th respondent legally protested over their dissatisfaction with the casual and inhumane manner in which the assault of one of them at the 4th respondent, was being handled as well as the failure of the 4th respondent to enter into a recognition agreement as provided for under Section 54 of the Labour Relations Act, 2007.

13. He deposed that as a result of the foregoing protest, the 4th respondent in a resolution of the Hospital Management and representative of the nurses resolved inter alia that, that no staff or nurse was to be reprimanded for participating in the picketing on 29th and October 30, 2019. Further that despite the return to work agreement stating there would be no victimization, the 4th respondent demoted eight nurses who are members of the petitioner and also instigated their arrest on trumped up criminal charges.

14. He deposed that his prosecution was malicious, unfounded and aimed at belittling his capacity as the secretary general for the petitioner. According to him they were simply expressing their rights under Articles 32 (1) as read with Articles 33(1) (a), 37 and 41(4) of the Constitution. He further deponed that the 4th respondent lodged a complaint with the police but, no one including the CEO, recorded a statement with the police. None of the board members that lodged a complaint against him was called to testify in the criminal case.

15. It is his further disposition that advancing the criminal charges would be in contravention of Section 22 of the Labour Relations Act, 2007 and further that there was no complainant in the charges as the 4th respondent on matters affecting the Hospital acts through the CEOwho did not testify even in this case. He averred that the prosecution on the first count of creating disturbance in a manner likely to cause a breach of peace contrary to Section 95(1) of the penal code, failed to proof violence as required.

16. Further that the trade dispute that led to the charges had been resolved by the 4th respondent. To wit, the petitioner and the 4th respondent signed a recognition agreement dated August 13, 2019; the demotion of the 8 nurses was lifted; the petitioner and the 4th respondent had also concluded a Collective Bargaining Agreement (CBA) negotiation and the draft CBAhad been forwarded to salaries and remuneration commission(SRC) for approval and advice. Finally that the 4th respondent had addressed all the issues that led to the picketing. Hence the criminal proceedings against the interested parties had no basis and should be quashed.

The Petitioner’s submissions 17. The petitioner filed two sets of submissions dated May 23, 2021 and June 10, 2021 respectively, through Mayende & Busiega advocates. In the former submissions, the petitioner raised three issues for determination; whether the respondents jointly and severally violated the interested parties constitutional rights under Articles 21(1), 25(c), 27(1) (4) (5), 28, 37, 41(2), 47(1) & (2) of the Constitutionand whether the petitioner had demonstrated their violations and lastly whether the petitioner was entitled to prayers sought in the petition and application.

18. On the first and second issues, they relied onAnarita Karimi Njeru v Republic (1979) KLR 154 andMumo Matemo v Trusted Society of Human Rights Alliance [2014] eKLR for the proposition that the petitioner has a burden of demonstrating the specific provisions said to be infringed and in the manner in which they are alleged to be infringed. They maintained that the respondents severally and jointly violated the interested parties’ constitutional rights under Articles 21(1), 25(c), 27(1), 28, 37, 47, 49(1) (h) and 50 of the Constitutionas demonstrated by the petition and supporting affidavit by the 1st interested party.

19. Regarding negative discrimination and malice, and relying on Articles 27(3) and (4) of the Constitution, they submitted that it was only 11 out of the 60 nurses who were arrested and charged. On denial of the right to demonstrate, picket and petition, and while relying on Article 37 of the ConstitutionCounsel argued that the same was denied when they were arrested and charged on account of picketing to present their grievances to the management within the facility.

20. Regarding denial of the right to reasonable working conditions, right to join a trade union and right to join a trade union and right to strike, and while relying on Article 41(2) (b)(c) and (d) counsel argued that the 4th respondent’s actions of criminalizing a labour dispute was an unfair practice contrary to Article 41. It is contended that the interested parties were arrested and charged with criminal offences for championing for their rights within the facility. It was also their desire to join the petitioner since it was a recognized union.

21. Counsel submitted that the decision to charge the interested parties without conducting any investigations was unfair. Further the refusal to take the statement of the CEO, the arresting officer and the OCSEverline who denied the 1-3rd interested parties bail was unreasonable and unprocedural. He therefore contended that Sections 4 and 5 of the Fair Administrative Action Act 2015 were contravened. Relying on Article 49 (1) (h) counsel submitted that 1st to 3rd interested parties were arrested, and denied bail by the OCSKenyatta Police Post, Capitol Hill Police Station and Kilimani Police station without any reasonable basis at all.

22. Counsel further submitted that the interested parties right under Article 25 was violated since they were denied the right to cross examine their main accusers. This came about since no member of the 4th respondent including the CEO, and the arresting officers were called to testify. Further that the charges as framed were incurably defective and insufficient. This was pointed out to the court but it fell on deaf ears.

23. On breach of Section 22 of the Labour Relations Act, they argued that the actions of the interested parties in pursuit of their labour rights and freedoms ought not be sanctioned through criminal proceedings. Further, they had the legitimate expectation that the 1st respondent would observe Article 157(11) of the Constitutionand that the 3rd respondent would act in accordance with Article 156(6) of the Constitution. That the respondent ought to have acted within Article 10 and 157(4) of the Constitutionand treated persons fairly hence the said actions violated the petitioner’s rights and freedoms guaranteed.

24. Counsel submitted that unless the orders sought are granted, the interested parties would suffer irreparable damage as they would be subjected to an unfair trial and this would be a continued infringement of their rights. They urged the court to be guided by the cases of Alfred Nyandieko v DPP & 3 othersPetition No 223 of 2017 and Tom Odhiambo Ojienda SC v Director of Public Prosecutions & 3 others [2020] eKLR and grant the orders sought in the petition and application.

25. In their latter submissions and responding to the issues raised by the 4th respondent counsel relied on Articles 2(4), 22(1), 23 and 47 of the Constitution and the case of Masai Mara (SOPA) Limited v Narok County Government Nairobi High Court Petition Number 336 of 2015. It was argued that the 4th respondent was misguided as Order 53 Rule 1 of the Civil Procedure Rules was not applicable to the instant petition, since the petitioner approached this court by way of a petition and not through a judicial review hence no leave was required.

26. Regarding Section 9(2) and (3) of the Fair Administrative Action, 2015, it was submitted that the petitioner has always advocated for resolution of the disputes herein amicably and vide its letter dated October 18, 2018, it had agreed to send its leadership to attend a meeting at the 4th respondent’s on October 29, 2018. The said meeting was intended to sort out the issues about insecurity within the facility as well as recognition of the petitioner as a trade union which did not take place due to the arrest and detention of the interested parties.

The 1st respondent’s submissions 27. The 1st respondent filed submissions dated May 24, 2021, through learned counsel Berryl Marinda. Relying on Articles 157(6), 157(10) and 157(11) of the Constitutionand the case of Petition 71 of 2015, Yunus Abdul Rubi & 2 others v Director of Public Prosecution & 2 others [2016] eKLR, she submitted that the 1st respondent discharges its mandate without consent or direction from any person or authority but in doing so must have regard to public interest and the administration of justice and the need to prevent and avoid abuse of the legal process. Relying on Articles 245(1) that establishes the office of the Inspector General of Police, Article 244 of the Constitutionthat stipulates the objectives of the National Police Service and the case of Republic v Director of Public Prosecution & 2 others Exparte Francis Njakwe Maina & another[2015] eKLR, she argued that the prosecution of the petitioner was not of itself an unlawful process and could not be said to be prejudicial to him.

28. Counsel further argued that in any case the petitioner was presumed innocent until proven guilty and there were constitutional safeguards underpinned by various statutes to ensure that the petitioner was accorded a fair trial. She submitted that it was in the public interest and an embodiment of the rule of law that those reasonably suspected of having committed an offence be prosecuted.

29. Therefore arrest and prosecution was no guarantee that a person may be convicted and even if convicted, the petitioner had a right of appeal. Accordingly, the petitioner herein had the presumption of innocence in his favour and were charges to be preferred against him, he had the opportunity to tender evidence before the trial to absolve himself of the accusations levelled against him. She relied on Elory Kraneveld v the Attorney General & 2 others, Nairobi Petition No 153 of 2012.

30. Relying onAndrew Okoth Onanda v Inspector General Police & 2 others [2018] eKLR, she submitted that the petitioner and interested parties failed to specifically demonstrate how any of their constitutional rights were violated.

The 2nd & 3rd respondents’ submissions 31. The 2nd and 3rd respondents filed submissions dated January 28, 2021 by learned counsel M/s Mitchelle Omuom. She submitted that on allegations levelled against the 2nd respondent, the petitioners had failed to demonstrate any wrong doing on the part of the 2nd and 3rd respondents having only alleged that the 2nd respondent had failed to promote alternative dispute resolution between the parties. No demonstration was made showing that the parties sought to resolve the dispute outside the litigation process. Further that the orders sought, seek to interfere with the statutory mandate of the 2nd respondent to hear and determine cases in a timely manner.

32. She argued that the petition was misguided and premised on a misunderstanding of the mandate of the 2nd respondent and the nature of criminal proceedings. Further that the interested parties being active participants in the criminal process ought to have expressed their interest in resolving the issues out of court in a bid to jumpstart an alternative dispute resolution process hence guilty of latches.

33. Relying on Section 4 of the Magistrates Court Act, it was submitted that the interested parties had not come to court with clean hands and ought not to have had any orders granted in their favour as against the 2nd respondent. Further the orders sought seek to interfere with the mandate of the 2nd respondent yet the petitioner and interested parties had not demonstrated that the 2nd respondent had violated the law in the discharge of its duties.

34. Counsel further submitted that the petitioners were estopped from raising issues of malicious prosecution arising out of a labour dispute as the same were not raised before the criminal court where they participated in proceedings fully. In any event they were at liberty to pursue a claim for malicious prosecution against the relevant parties in the civil court. A claim for malicious prosecution does not raise any constitutional question for determination and counsel urged the court to dismiss the petition and application.

The 4th respondent’s submissions 35. The 4th respondent filed submissions dated June 4, 2021 through P. N. Khisa advocates. Reiterating the contents of their replying affidavit and grounds of opposition on contravention of Order 53 rules 1 and 2 and Section 9(2) and 9(3) of theFair Administrative Actions Act 2015 and while relying on the case of Republic v Moses Akaranga & 3 others Exparte AGN Kamau Advocates [2020] eKLR counsel argued that this court lacks the jurisdiction to hear and determine the petitioners petition and notice of motion having failed to comply with the aforesaid mandatory provisions.

36. Counsel submitted that the 4th respondent had never denied its employers the right to assemble, join a union or to have reasonable working conditions. He argued that the petitioner had failed to demonstrate a prima faciecase on violation of its fundamental rights and freedoms as guaranteed to the interested parties. He urged the court to strike out the petition and notice of motion with costs to the 4th respondent.

37. In regard to the notice of motion counsel submitted that the petitioner had not established a prima facie case to warrant the grant of the conservatory orders. Reiterating the contents of its replying affidavit, counsel argued that there was no recognition agreement between the 4th respondent and the petitioner at the time of the alleged arrest and picketing, and that the recognition agreement was only signed on August 13, 2019.

38. Counsel contended that the members petitioner’s union violated the moratorium in place to allow picketing pursuant to resolutions of October 30, 2018. Further there existed no real danger of violation of constitutional rights of the members of the petitioner, and there were no reported cases of violations of the recognition agreement by the 4th respondent; and there was no reported case of conflict arising between the 4th respondent and the petitioner with regard to the recognition agreement.

39. It was submitted that the petitioner had not come to court with clean hands, as it failed on the recognition agreement. Reliance was placed on Progress Welfare Association of Malindi & 3 others v County Government of Kilifi & 4 others [2020] eKLR; Mohamed Shally Sese (Shah Sese) v Fulson Company Ltd & another[2006] eKLR for that argument. Relying on Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] eKLR, it was submitted that the 1st interested party was not an employee of the 4th respondent at the time of the picketing and the alleged arrest. He had also been dismissed from service at the time of the picketing and alleged arrest. There was no recognition agreement in existence at the time of picketing and the alleged arrests. The petitioner therefore lacked the locus standi or capacity to institute the petition and notice of motion.

The Interested parties submissions 40. The interested parties filed submissions dated June 3, 2021 through Seth Ojienda of Ojienda & Company advocates. Associating themselves with the submissions by the petitioner and while relying on Article 22 of the Constitutionand the cases of Anarita Karimi Njeru v Attorney General (1979) KLR 154; Philomena Mbete Mwilu v Director of Public Prosecution & 3 others; Stanley Muluvi Kiima (Interested Party);International Commission of Jurists Kenya Chapter (Amicus Curiae)[2019] eKLR they argued that the petitioner had out rightly on the face of the petition elaborately cited the violations in the acceptable manner. Further that the petitioner further under the legal foundations and constitutional and statutory provisions and submissions set out the manner in which the said provisions were contravened.

41. On whether the arrest, charging and prosecution of the interested parties violated their rights under Articles 21(1), 25(c), 27(1) (4) (5), 28, 37, 41(2), 47(1) (2) of the Constitution, It was argued that Article 37 of the Constitutionprovides that every person has the right to peacefully and while unarmed, to assemble, demonstrate, picket, and present petitions to public authorities. The said right is however by dint of Article 24 of the Constitution, not absolute but the limitation must be provided for by the law and must be reasonable and justifiable in an open democratic society.

42. Counsel submitted that the petitioner is a union recognized under Section 22 of the Labour Relations Act and through the 1st interested party has tried to engage the 4th respondent in the spirit of Articles 41 to try and work out things. Further that the respondents were punishing members for engaging in a strike to agitate for better working conditions and the same was contrary to Article 47 of the Constitution. They relied onCounty Government of Kakamega & 2 others v Salaries and Remuneration Commission; County Government of Mombasa (Interested Party) [2018] eKLR in support.

43. Regarding Article 27(4) of the Constitution, and while relying on the case of H.O.O (a child suing through his father and next friend) P.O.O. v Board of Management N School & 2 others [2018] eKLR counsel argued that the interested parties were singled out of the 60 health workers who were involved in the picket protesting.

44. On whether the DPP’s decision to institute the charges in the criminal cases violated Article 155(11) of the Constitution, they argued that the charges against the interested parties were brought in contravention of Article 157(11) of the Constitution. They argued further that the office of the 4th respondent was enjoined by the provision of Article 159(2) (e) of the Constitutionto protect and promote the purpose and principles of our constitution.

45. It was further submitted that it is within the province of this court in exercising its power to prohibit the abuse of the intended criminal process and to find that the intended prosecution was not consistent with the constitutional values as enshrined under Article 10. It is their submission that the petitioner is entitled to the reliefs sought because petitioner is entitle dot the reliefs the entire process from investigation, decision to prosecute violated the petitioner’s members constitutional rights. They relied on Richard Mohammed Echesa v DPP and 3 others [2019] eKLR and urged the court to award the costs as sought.

Analysis and determinationPARA 46. Having carefully considered the petition, application, responses, rival submissions cited cases and the law, I find the following to be the issues for determination:-i.Whether the petitioner had locus standi to institute the petition and notice of motionii.Whether the conservatory orders should be issuediii.Whether the petition and application offend Order 53 Rules 1 & 2 of the Civil Procedure Rules and Sections 9(2) and (3) of the Fair Administrative Action Act, 2015iv.Whether the respondents violated the interested parties’ rightsv.Whether the reliefs sought should be granted i. Whether the petitioner had the locus standi to institute the petition and notice of motion Application 47. The 4th respondents raised this issue in their pleadings. That the petitioner failed to disclose that the 1st interested party was not an employee of the 4th respondent at the time of the alleged arrest and that there was no recognition agreement in existence with the 4th respondent at the time of arrests hence no locus standi to institute the suit.

48. A look at the petitioner’s petition reveals that the petitioner filed the petition on its own interest and in the public interest pursuant to Article 22 of the Constitution. Article 22 of the Constitutionprovides for the enforcement of Bill of rights as follows: -(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, or infringed, or is threatened,

(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-(a)a person acting on behalf of another person who cannot act in their own name.(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.

49. Article 258 of the Constitutionalso provides for enforcement of the constitution follows:-(1)Every person has the right to institute court proceedings, claiming that this constitution has been contravened, or is threatened, or is threatened with contravention,

(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by-

(a)A person acting on behalf of another person who cannot act in their own name;(b)A person acting as a member of, or in the interest of, a group or class of persons;(c)A person acting in the public interest; or(d)An association acting in the interest of one or more of its members.

50. In the case of Timothy Otuya Afubwa & Another v County Government of Trans Nzoia & 3 others [2016] eKLR it was held that:“13. That their petition is on behalf of the public and they have invoked the provisions of Article 258(2) (c) and 22(1) of the Constitution. Article 22 deals with the Enforcement of Bill of Rights and provides that every person can bring court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed and the same can be brought by a person acting on behalf of the public. This Article in my view is so wide and the drafters of the constitution intended that nobody would be locked out of the mercy sit of justice when his interest or those of the public are threatened.

14. Article 258 of the constitution buttresses the provision of Article 22 above. I do find that the petitioners have locus standi. They fall within the class of persons anticipated under Article 258 of the constitution. They have not in my view brought this petition with ulterior motive or bad faith. What they are saying simply is that the hospital to be build or expanded would be public. The funds used to purchase would be public. If the process is flawed then the public would obviously suffer. The tax payer eventually would foot the bill.”

51. This petition was brought pursuant to Article 22(1) of the Constitutionwhich allows any person to institute court proceedings claiming the violation, infringement or a threat of a right and/ or fundamental freedom in the Bill of rights. Further, the issues raised by the 4th respondent have no basis. Assuming that it is true as alleged that the 1st interested party was not an employee of the 4th respondent at the time of picketing and subsequent arrest, does that deprive him of the right? What about the other interested parties on whose behalf the petition has also been brought? Does failure to have a recognition agreement subvert the applicability of Articles 22 and 258 of the Constitution? Based on the above cited provisions of the constitution and the case law, it is evident and clear that the petitioner had the locus standi to file the petition.

ii. Whether the conservatory orders should be issued 52. The petitioner in the notice of motion application sought for orders staying the proceedings in the criminal cases pending the hearing and determination of the application and petition. They argued that if the orders sought were not granted then they would suffer irreparable damage.

53. The 1st respondent argued that the petitioner had not satisfied the four principles applicable in applications for conservatory orders. That it was in the interest of justice that the criminal cases proceed and being that the prosecution witnesses had already been cross examined by the petitioner and interested parties’ advocates before stay was granted by the Employment and Labour Relations Court. They accused the interested parties and petitioner of latches as they only applied for the orders on 14/5/2019 while they had been charged on October 30, 2018.

54. The 2nd and 3rd respondents submitted that the orders sought were spent as the hearings in the criminal cases had already been concluded. The 4th respondent submitted that the petitioner failed to establish and demonstrate a prima facie case and that the rights of its members had been violated. The 1st interested party submitted that the trade dispute that led to the charges had been resolved by the 4th respondent hence the criminal proceedings against the interested parties had no basis and should be quashed.

55. Regarding the issue of conservatory orders, the Supreme Court discussed the nature of conservatory orders in Civil Application No 5 of 2014 Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others[2014] eKLR, as follows: -(86)“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay.

56. In Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR the Court had the following to say about the nature of conservatory orders: -“Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”

57. A conservatory order was defined in Nairobi Civil Appeal 151 of 2011Invesco Assurance Co. Ltd v MW (Minor suing thro' next friend and mother (HW) [2016] eKLR as follows: -“5. A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”

58. It follows that the rationale for granting conservatory orders is to preserve the substratum of the matter pending the determination of the main issues in dispute.

59. The principles regarding the grant of conservatory orders were stated in the locus classicus in the Supreme Court in Civil Application No 5 of 2014 Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR where the Court stated as follows: -(86)“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant courses.See also(i)In Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others [2015] eKLR.(ii)In Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No154 of 2016 (2016) eKLR.

60. Without delving deeply into whether the petitioner met the threshold for granting the conservatory orders and as noted hereinbefore, conservatory orders in this case were granted on May 25, 2021 by Korir J, staying the criminal cases. The 2nd and 3rd respondents have submitted that the said cases proceeded to conclusion while the interested parties submitted that the trade dispute that led to the criminal charges was settled hence no basis for them at all. It is not clear under what circumstances the criminal cases proceeded when conservatory orders were in place.

61. Secondly, being that the criminal cases are already concluded and looking at the nature of the conservatory orders and the rationale behind granting them, the question one would ask is whether indeed granting them at this juncture is plausible. In my view, the criminal cases having proceeded to conclusion, the interested parties having participated in the proceedings, and the trade dispute having been addressed by the 4th respondent granting them would be an exercise in futility. Orders cannot be issued in vain as they would serve no purpose. See Daniel Kaminja & 3 others (suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR.

iii. Whether the petition and application offend Order 53 Rules 1 & 2 of the Civil Procedure Rules and Sections 9(2) and (3) of the Fair Administrative Action Act, 2015 62. The 4th respondent submitted that this court lacks jurisdiction to entertain the petition and notice of motion as they both offend Orders 53 Rules 1 & 2 and Sections 9(2) and (3) of the Fair Administrative Actions Act, 2015.

63. The petitioner on the other hand submitted that the position by the 4th respondent was misguided since the court having been moved by way of a petition and not through Judicial review did not have to grant leave for the matter to take off.

64. Order 53 Rules 1 and 2 of the Civil Procedure Rules 2010 provide as follows:-

1. Applications for mandamus, prohibition and certiorari to be made only with leave[Order 53, rule 1. ](1)No application for an order of mandamus, prohibition or certiorari shall be made unless leave therefor has been granted in accordance with this rule.(2)An application for such leave as aforesaid shall be made ex parte to a judge in chambers, and shall be accompanied by a statement setting out the name and description of the applicant, the relief sought, and the grounds on which it is sought, and by affidavits verifying the facts relied on.

65. Article 23 (3) of the Constitutionprovides that in any proceedings brought under Article 22, a court may grant appropriate relief, including-(a)A declaration of rights;(b)An injunction;(c)A conservatory order;(d)A declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;SUBPARA (e)An order for compensation; and(f)An order of judicial review. 66. In Masai Mara (SOPA) Limited v Narok County Government [2016] eKLR, the court stated;54. “On the issue of the application of Order 53 of the Civil Procedure Rules to a constitutional petition where a party seeks judicial review reliefs, I must hasten to point out that since the promulgation of the Constitution in 2010, administrative law actions and remedies were also subsumed in the Constitution. This can be seen in the eyes of Article 47 which forms part of the Bill of Rights. It is safe to state that there is now substantive constitutional judicial review when one reads Article 47 as to the right to fair administrative action alongside Article 23(3) which confers jurisdiction, on the court hearing an application for redress of a denial or violation of a right or freedom in the Bill of rights, to grant by way of relief an order for judicial review.

55. Order 53 of the Civil Procedure Rules do not consequently apply to Constitutional Petitions where the court is expected to exercise a special jurisdiction which emanates from the Constitution and not a statute.”

67. I have considered the provisions of the constitution and the decided cases and it is clear that leave is only required when one is purely applying for Judicial Review. In this case this is a constitutional petition through which Judicial Review remedies maybe given. One does not have to seek leave to file the petition even if some of the orders sought are Judicial Review orders.

68. Regarding Section 9 (2) and (3) of theFair Administrative Actions Act, 2015 relied upon by the 4th respondent as the basis for this court’s jurisdiction being ousted provides as follows“9. Procedure for judicial review(1)Subject to subsection(2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.(2)The High Court or a subordinates under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.(3)The High Court or a subordinate Court shall, if it not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).(4)Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interested of justice.(5)A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal. ”

69. In other words, the 4th respondent is submitting that the petition offends the doctrine of exhaustion. The 5- bench judge in the case of William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR had this to say on where the question of exhaustion of administrative remedies arises. It stated;“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus: 42. This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.

43. While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:

It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

70. The petition before this court is based on the arrest and charging of the interested parties for picketing and demonstrating. It is not about the grievances between the Petitioner, interested parties and 4th respondent. Had it been the latter then the 4th respondent’s submission would stand. I therefore find that the doctrine of exhaustion cannot be invoked herein as there is no alternative forum outside the court to address the petitioner’s / interested parties claims. The 4th respondent has not pointed out any forum where the petitioner and interested parties would have taken their claims.iv.Whether the respondents violated the interested parties’ rights

71. The petitioner submitted that the interested parties rights under Articles 27 (3) and (4), 37, 41(2) (b)-(d), 47(1) (h), 25, 50 (2) (b), 159 (2) (k) of the Constitutionwere violated. Further that Sections 4 & 5 of the Fair Administrative Action Act 2015 and Section 22 of the Labour Relations Act were contravened.

72. The 1st respondent argued that the petitioner failed to plead with specificity the rights violated and the manner of their infringement. That the petitioner failed to demonstrate how the police or the DPP acted unconstitutionally in carrying out their duties. It’s their argument that the charges against the interested parties had no nexus or correlation with the labour issues highlighted in the petition and denial of bail did not amount to constitutional violation as the same is determined on a case to case basis.

73. The 2nd & 3rd respondents argued that the petitioner failed to show that the criminal proceedings were premised on a labour dispute.

74. The 4th respondent submitted that it did not deny the petitioner and interested parties the right to picket, demonstrate and petition for reasonable working conditions or the right to join a trade union or strike. The staff who were arrested breached the moratorium of 30th October 2018 where the nursing staff were allowed to picket on 29th and 30th without reprimand. The rest are well captured in the submissions.

75. The interested parties submitted that they were legally protesting and that there was a resolution that no staff or nurse would be reprimanded for participating in the picketing of 29th and October 30, 2019 and that there would be no victimization. That the criminal charges contravened Section 22 Labour Relations Act and had no basis as the trade dispute that led to the charge had been resolved.

76. When filing a petition on violation of human rights one must clearly set out the violated provisions and how they were violated as set out in Anarita Karimi Njeru v Republic [1979] eKLR where the court stated:-“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be ingrained.” (Emphasis added)

77. The case of Memo Matemu v Trusted Society of Human Rights Alliance [2013] eKLR also reaffirmed the position in Anarita Karimi Njeru (supra). Further whoever alleges must prove as stipulated in Section 107 of the Evidence Act. The petitioner alleged and listed the constitutional provisions that were contravened by the respondents against the interested parties. It was therefore their duty to not only set out the constitutional provisions that were contravened, but to also set out the manner in which they were contravened.

78. It has been stated by the respondent that the criminal cases which are the basis of the complaint by the petitioner and interested parties were heard and concluded. This was not rebutted by the petitioner or interested parties. The interested parties have even stated that the 4th respondent’s Chief Executive Officer (CEO) and Investigating Officer (IO) were never called to testify and so they had no opportunity to cross-examine them. That they were all the same placed on their defence. This goes further to confirm that the criminal case/cases were heard and concluded as explained by the respondent. Of course this is despite the conservatory orders having issued herein. It is the parties herein who know exactly what happened in the lower court and yet they did not give the full details to this court.

79. It is not known by this court whether there was an acquittal or a conviction of the petitioner and interested parties. All they say is that they were placed on their defence. It follows that a judgment was delivered. Whatever the outcome was there an appeal filed? If the lower court heard the case and made a determination can the parties come before this court to indirectly to challenge the decision by hiding behind constitutional violations? That is a clear abuse of the court process. I now wish to consider the prayers.Prayer A –This court cannot deal with this without knowing the outcome of the criminal charges that the interested parties faced.Prayer B –What the interested parties were charged with was picketing, creating disturbance, resisting lawful arrest which are all criminal offences and have nothing to do with labour relations matters under the Labour Relation Act.Prayer C.The DPP had the interested parties charged. There is nothing to prohibit.Prayer D.The criminal cases proceeded so there is nothing to prohibit.Prayer E.The decision of the DPP already took effect and the court acted on it. It cannot be quashed at this point.Prayer FWithout this court knowing what transpired in the lower court, it cannot make a finding on whether the criminal proceedings against the interested parties were unlawful. It is only the court where an appeal has been filed that can issue such an order. These parties are therefore not entitled to damages.Prayer GNo relief has been proved as deserving.

80. My finding is that the petitioner and interested parties have failed to prove that they are deserving of any of the reliefs sought. The petition is therefore dismissed with costs, to the respondents.Orders accordingly.

Delivered virtually, signed and dated this 17th day of June, 2022 in open court at Milimani, Nairobi.H. I. Ong’udiJudge of the High Court