https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1631

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC NAIROBI CAUSE NO. E041 OF 2021** *(Before Hon. Lady Justice Maureen Onyango)* **KENYA NATIONAL UNION OF NURSES ……………….. CLAIMANT** **VESUS** **MINISTRY OF HEALTH & 43 OTHERS …………… RESPONDENTS** **MINISTRY OF LABOUR &** **SOCIAL PROTECTION…………………….…1ST INTERESTED PARTY** **RULING** 1. On 24th October, 2024, this court delivered a judgment in **Nairobi ELRC Cause No. 731 of 2019** in which determination was made in respect of **ELRC NYERI CAUSE NO. 8 OF 2020, ELRC MERU CAUSE NO. 42 OF 2019, ELRC NAIROBI CAUSE NO. E6605 OF 2021, ELRC NAIROBI CAUSE NO. E041 OF 2021, ELRC NAIROBI CAUSE NO. E6538 OF 2020, MISCELLANEOUS NO. 004 OF 2021, PETITION NO. 208 OF 2020, and PETITION NO. 211 OF 2019.** 2. The cases were filed following the strikes in the medical sector in which several trade unions called their members out on industrial action on matters which largely concerned the rights of their members related to the Covid-19 pandemic. 3. In the Statement of Claim in **ELRC NAIROBI CAUSE NO. E041 OF 2021, the instant suit, the Claimant** the Claimant sought the following orders: 4. An order be and is hereby issued compelling the respondents to provide standard and sufficient Personal Protective Equipment to all Nurses in their employment. 5. An order be and is hereby issued directing the respondents to provide comprehensive medical cover and Group live insurance cover to all the Nurses in their employment. 6. An order be and is hereby issued directing the respondents to pay on a monthly basis Enhanced Risk Allowance as negotiated between parties. 7. An order be and is hereby issued directing the respondents to implement SRC circular dated 9th June, 2017 on Health Risk Allowance for nurses and pay arrears accrued since the date of the circular. 8. An order be and is hereby issued directing the 1st and 3rd to 41st respondents to paying arrears of 42 months and upto date the Risk Allowance of Ksh. 5000 as approved by Salaries and Remuneration Commission (SRC) in a letter dated 9th June, 2017. 9. An order be and is hereby issued directing the 44th Respondent (SRC) to review the Risk Allowance as recommended by the intergovernmental agencies in a consultative meeting dated 14th December,2020 on issues raised by health care workers to Ksh.30,000 for nurses. 10. An order be and is hereby issued directing the 1st and 3rd to 41st respondents to compensate the families of nurses who have succumbed to the COVID-19 Pandemic and other illnesses as well as accidents before the operationalization of comprehensive Group Life, Last Expense, Enhanced Work Injury Benefits (WIBA)and Group Personal Accident Cover as provided for by NHIF applying the new rates. 11. An order be and is hereby issued directing the respondents to quash any and all the disciplinary actions that may have been taken against nurses in relation to the strike notice of 23rd November, 2020 and prohibit the respondents from undertaking any form of victimization arising out of the strike. 12. An order be and is hereby issued directing the 1st to 39th respondents to refund the funds of nurses who have been hospitalized and have paid the medical bills through their own funds due to absence of Comprehensive Medical Insurance Cover. 13. An order be and is hereby issued directing the 1st and 3rd to 41st respondents to pay nurses employed on contract terms including those under UHC salaries and allowances in accordance with the law and Human Resources Policies and Procedure Manual for Public Service 2016 and release the stipend for BScNs interns. 14. An order be and is hereby issued directing the 1st and 3rd to 41st to pay nurses any withheld salaries owing to the strike dated 23rd November, 2020. 15. An order be and is hereby issued directing the 1st and 3rd to 41st to employ all the seven thousand (7000) nurses to help in the fight against Covid-19 Pandemic. 16. An order be and is hereby issued directing the 1st and 3rd to 41st to comply with the law in remittance of statutory deductions and Union dues. 17. Any other order the Court may deem fit to meet the ends of Justice to issue. 18. That, cost of this suit be borne by the respondents 19. In the judgment, the court determined as follows: 1. A declaration be and is hereby made that the members of the Respondents provide an essential service. 2. A declaration be and is hereby made that the strike called by Respondents on 30th October 2019 and on 7th December, 2020 was unprotected as it was in violation of section 81 of the Labour Relations Act which prohibits strikes in essential services. 3. Each party to bear their own costs. 20. Following delivery of the judgment, the Claimant filed the application dated 10th November, 2025, the instant application, in which it seeks the following reliefs: 21. Spent. 22. THAT the Court be pleased to set aside, review and/or vacate the Judgement dated 24th October,2024 delivered by the Honorable Lady Justice Maureen Onyango on the given date in the interest of justice. 23. THAT the Honorable Court be pleased to admit the Conciliator’s Report between the Applicant and Kisii County Public Service Board dated 22nd April 2021 as evidence in this matter and adopt the recommendations of that report. 24. That the costs of this application be granted to the Application. 25. The grounds in support of the application as set out on the face thereof and in the supporting affidavit of SETH AMBUSINI PANYAKO, the General Secretary of the Applicant, are: 26. THAT the Applicant filed a claim ELRC Number E041 of 2021 against the Respondents dated 19th January 2021 claiming inter alia * 1. Unfair Labour Practices by the Respondents 2. Failure by the Respondents to provide standard PPEs to the nurses 3. Failure by the Respondents to provide comprehensive cover and group life insurance cover 4. Failure by the Respondents to implement Section 14 of the Occupational Safety and Health Act in order to Secure the work environment. 27. THAT the Court consolidated all the claims and Applications that had been filed by all the parties including the Applicant’s Claim. 28. THAT Further, the Applicant was never notified of the date of the judgment despite the Court having directed that Judgment would be delivered on Notice. 29. THAT upon reading the said Judgment, the Applicant noted that the Honorable Court had not rendered itself on its claim ELRC No. E041 of 2021 in spite of the Applicant having actively participated in the consolidated suit and filed comprehensive submissions on its issues in the Claim No.E041 of 2021. 30. THAT the inadvertence by the court to address itself on the Applicant's Claim has led to the Applicant to suffer serious prejudice and possible miscarriage of justice 31. THAT had the court considered the Applicant's Claim ELRC No. E041 of 2021, it would have arrived at a totally different decision. 32. THAT the above is an error apparent on the face of the record and this court is clothed with the requisite jurisdiction and discretion to review the Judgement dated 24th October, 2024 and vacate its orders thereto. 33. THAT the Applicant further seeks to include the Conciliators’ Report dated 22nd April, 2021 between the Applicant and Kisii County Public Service Board as fresh and compelling evidence in this matter. 34. THAT it is in the interest of justice that the Applicant prays that the Honorable Court allows the instant application to review its judgment of 24th October, 2024 35. That if the present application is not allowed, there will be gross miscarriage of justice that shall lead the Applicant and its members to suffer immense prejudice. 36. That is it for that reason hat the Applicant prays that the Honourable Court reviews its Judgment on 24th October, 2024 and votes the orders thereto. 37. That the costs of this application be in the cause. 38. None of the Respondents filed response to the application. 39. The application was disposed of by way of written submissions. Only the applicant filed submissions dated 17th April, 2026. 40. In the submissions the Applicant identifies the issues for determination to be: 41. Whether the Applicant’s application dated 10th November, 2025 meets the threshold for review application; 42. Whether the Court be pleased to set aside, review and/or vacate the Judgment dated 24th October, 2024. 43. The Applicant submits that the threshold for review is set out in Order 45 Rule 1(b) of the Civil Procedure Rules as read with sections 1A, 1B, 3, 3A, 80(a) and (b) and 100 of the Civil Procedure Act. 44. It is further submitted that the threshold for review was restated by the Court of Appel in **National Bank of Kenya v Ndungu Njau Civil Appeal No. 2011 of 1996** where the Court stated: *“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evidence and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter not can it be a ground for review that the court proceed on an incorrect expansion of the law”* 1. The Applicant submits that the court inadvertently omitted to consider its claim by consolidating all existent claims and as a result the court ended up arriving at an entirely different result. That should the court consider the same together with new evidence that the Applicant seeks leave to be admitted, being the conciliator’s report, the court would likely reach a different outcome. 2. On the admission of the new evidence the Applicant relies on the decision in **Ringi v Seif & another (Civil Appeal 44 of 2016) [2019] HEHC 12498** wherein the court held: *....The power of this Court to admit additional evidence is discretionary. This discretion as in all other discretionary powers of the Court must be exercised judicially. It is well settled that the power of an appellate Court to admit fresh evidence should be exercised very sparingly and with great caution. The principles upon which the Court may exercise its discretionary power to determine whether or not to admit additional evidence were expressed by Chesoni, Ag JA (as he then was) in* ***Wanjie & others v Sakwa & others (1984) KLR 275*** *as follows:* *“...the principles upon which an appellate court in Kenya in a civil case will exercise its discretion in deciding whether or not to receive further evidence are the same as those laid down by Lord Denning LJ, as he then was, in the case of* ***Ladd v Marshall [1954]1 WLR 1489 at 1491*** *and those principles are:* 1. *It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;* 2. *The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;* 3. *The evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”* 4. The Applicant urges the court to allow the application. **Analysis and Determination** 1. Having considered the application together with the grounds and affidavit in support thereof and having further considered the submissions filed by the Applicant, the issues for determination are: 2. Whether the application meets the threshold for review; 3. Whether the Applicant is entitled to the orders sought. 4. From the outset I want to point out that the suit filed by the Applicant was essentially intended to address the plight of its members at the height of Covid-19 pandemic. 5. Further, the suit was filed while the members of the Applicant were on strike which had affected the entire health sector in the country. Several interventions were underway at the time, including interventions by the Ministry of Labour through conciliation process, the involvement of Salaries and Remuneration Commission to address some of the issues that related to payment of allowances, benefits and remuneration, as well as several court cases that had been filed by trade unions representing the workers in the Health sector. There were also several cases filed by the employers in the health sector to stop the ongoing strike and industrial action. 6. This is evident in the pleadings especially paragraphs 11, 12, 13 and 18 of the Applicant’s Statement of Claim dated 19th January, 2021. 7. By the time the judgement in the consolidated suit was delivered on 24th October, 2024, Covid-19 was under control and was no longer considered as a pandemic, the countywide health sector strike/industrial action had been called off and the conciliation process through the Ministry of Labour had realized some positive results. 8. In recognition of the time lapse between the filing of the suit and the time of judgment and recognizing the interventions and successes achieved in the intervening period, the judgment addressed only the two issues that were considered to be still outstanding. That is why at paragraph 13 of the Judgement the court observed that: *“The court appreciates that because of the nature of the disputes in the various suits and the passage of time, most of the issues in dispute in the various suits have since been resolved or have been overtaken by events. This judgment will only deal with issues that are still alive*.” 1. Further, at paragraphs 14 of the Judgement the court set out the issues still outstanding for consideration to be: 2. Whether the members of the Respondents are engaged in the provision of essential services and if the answer is in the affirmative, 3. Whether the 1st Respondent was justified in calling for a strike. 4. Turning to the issues in dispute herein, the threshold for review of this court’s decisions is set out in section 16 of the Employment and Labour Relations Court Act and Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024. 5. Section 16 of the Act provides: *16. Review of orders of the Court The Court shall have power to review its judgements, awards, orders or decrees in accordance with the Rules* 1. Rule 74(1) of the Rules provides: *74. (1) A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—* *(a) if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;* *(b) on account of some mistake or error apparent on the face of the record;* *(c) if the judgment or ruling requires clarification; or* *(d) for any other sufficient reason.* 1. In the application the Applicant has invoked Rule 74(1)(a) and (b). 2. The supreme Court discussed what constitutes error apparent on the face of the record in***Fredrick Otieno Outa v Jared Odoyo Okello and 3 others*, Petition 6 of 2014, Ruling of the Supreme Court of Kenya,24 February 2017, [eKLR], para 8** as follows: *“[85] This Section as quoted, embodies what is ordinarily referred to as the “Slip Rule”. By its nature, the Slip Rule permits a Court of law to correct errors that are apparent on the face of the Judgment, Ruling, or Order of the Court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the Court. By the same token, such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of the Court. In other words, the Slip Rule does not confer upon a Court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it. ...”* 1. In the instant application the Applicant seeks to ***set aside, review and/or vacate*** the judgmentdated 24th October, 2024. 2. Going by the decision of the Supreme Court in **Fredrick Otieno Outa Case** the orders sought do not fit within the provisions of Rule 74(1)(a). Where a court fails to take into account material evidence as proposed by the Applicant, the solution is an appeal. 3. The other reason why this is not possible is the time lapse between the date of judgement and the date of the application. Rule 74(1) refers to the application being brought *within a reasonable time.* 4. Order 45 Rule 1(b) of the Civil procedure Rules which the Applicant anchored its submissions on provides that such application be brought uses the term “without unreasonable delay”. 5. The court only considered the two issues set out in the judgement and not any of the issues raised in the Claimant’s suit which in the opinion of the court had been overtaken by events or resolved by other means. 6. The number of parties involved in the suit who have since moved on, and who did not participate in the instant application, would also militate against granting the orders sought by the Applicant. 7. Further, in the application the Applicant is not specific on the matters that the court failed to consider. 8. It is further important to note that the judgement took into account all the other suits that were consolidated with the Claimant’s Claim and only what was outstanding at the time of writing the judgment which was close to 4 years after the suit was filed. 9. It is my considered opinion that review of the judgment on the ground that there is an error on the face of the record is not feasible in the instant case. 10. The second prayer in the application is that the court admits the conciliator’s report dated 22nd April, 2021. The Applicant has not stated why it did not apply for the report to be admitted between the date on which it was issued to the Applicant and the date of the application. The judgment was delivered several years after the date of the report. No explanation has been given why it was not produced earlier. 11. Further, Rule 74(1)(a) is specific that for the court to consider new evidence the applicant must demonstrate that it was not able to discover the new evidence*,* ***despite the exercise of due diligence****,* or that the evidence***was not within the knowledge of that person or could not be produced by that person*** *at the time when the decree was passed or the order made* 12. The Claim is dated 19th January, 2021, before the date of the conciliator’s report. The Applicant has not adduced any evidence to demonstrate that it was not aware of the report or was not able to produce it before the date of judgement. 13. Further, a conciliator’s report is not binding on the court. It is only used as part of the evidence before the court. Its absence is thus not fatal to the case. If all facts are produced before the court, it is unlikely that with the conciliator’s report the court would arrive at a different decision. 14. The foregoing notwithstanding, I have had the opportunity to peruse the Conciliator’s Report. It recommends that: ***7.1 The Kisii County Government to immediately re-instate without loss of benefits of the group of nurses dismissed via letters of reference KCG/CO/HRM/VOL. 15/20 and KCG/CO/HRM/VOL. 15/26.*** ***7.2 The Kisii County Government to immediately deduct and remit all union dues in arrears to the account of the union.*** 1. The orders for reinstatement had already been issued by this court during the pendency of the case and are therefore overtaken by events. The issue of union dues, although raised in the Statement of Claim, no evidence was adduced in support of the same indicating how much was owed and for what period. In any event, it was one of the issues resolved during the pendency of the suit. 2. Based on the foregoing, even if the court had the Conciliator’s report at the time of writing the judgment, it is unlikely that it would have influenced the decision or that the court would have decided differently. 3. From the forgoing, I find no merit in the application dated 10th November, 2025. The application is accordingly dismissed with no order as to costs. **DATED, DELIVERED AND SIGNED** **ON THIS 12TH DAY OF JUNE 2026.** **M. ONYANGO** **JUDGE**