[2015] KEELRC 1491 (KLR)
The court found that the dispute arises from an employer-employee relationship between the grievant and the 1st respondent, thus falling squarely within the jurisdiction of the Industrial Court as established by Article 162(2) of the Constitution and Section 12 of the Industrial Court Act. The court further held...
Source-derived case information.
- Citation
- [2015] KEELRC 1491 (KLR)
- Parties
- Applicant: Kenya National Union of Nurses; Respondent: Kenyatta National Hospital Board; Respondent: The Cabinet Secretary Ministry of Health; Respondent: The Attorney General; Respondent: Mr. Justus Kimathi Mbui
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Petition 53 of 2014
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objections
- Outcome
- preliminary objections dismissed
- Legal Topics
- Jurisdiction of Employment Court, Preliminary Objection, Joinder of Parties, Employer Employee Relationship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Union of Nurses
Applicant
Kenyatta National Hospital Board
Respondent
The Cabinet Secretary Ministry of Health
Respondent
The Attorney General
Respondent
Mr. Justus Kimathi Mbui
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objections
Legal Issues
- 1 Whether the Industrial Court has jurisdiction under Article 162(2) of the Constitution and Section 12 of the Industrial Court Act to hear the dispute.
- 2 Whether non-joinder of KUDHEIHA is fatal to the suit.
- 3 Whether the issues raised are pure points of law suitable for determination at the preliminary stage.
Ratio Decidendi
The court found that the dispute arises from an employer-employee relationship between the grievant and the 1st respondent, thus falling squarely within the jurisdiction of the Industrial Court as established by Article 162(2) of the Constitution and Section 12 of the Industrial Court Act. The court further held that the non-joinder of KUDHEIHA is not fatal to the proceedings, as joinder can be ordered if necessary. Most of the preliminary objections raised by the respondents were not pure points of law and required consideration of factual matters, making them unsuitable for determination at the preliminary stage. The court also determined that the present suit is distinct from Cause No....
Court Disposition
preliminary objections dismissed
Orders
- The preliminary objections are not upheld.
- Costs in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
PETITION 53 OF 2014
KENYA NATIONAL UNION OF NURSES ..........................................................…….. APPLICANT
VERSUS
KENYATTA NATIONAL HOSPITALBOARD ………........................................ 1ST RESPONDENT
THE CABINET SECRETARY MINISTRYOF HEALTH……..…..…………..…2ND RESPONDENT
THE ATTORNEY GENERAL ………..…..............................................……… 3RD RESPONDENT
MR. JUSTUS KIMATHI MBUI …………...............................................…..…. 4TH RESPONDENT
M/S ASHUBWE FOR PETITIONER
MR. MUTUBWA FOR 1ST AND 4TH RESPONDENTS/OBJECTORS
MRS. CHESINA FOR 2ND AND 3RD RESPONDENTS
RULING
1. The 1st and 4th Respondents raised Preliminary Objections to the Petition set out from paragraph 1 to 9 of the Notice.
2. The court has considered the submissions by the Advocates to the parties and has come to the conclusion that except Objection No. 2 all the other points raised are incapable of disposal without considering facts of the case.
3. These points are therefore not pure points of law capable of determination at this stage of the trial.
4. As regards point No. 2 which reads;
“This court lacks the requisite jurisdiction under Article 162(2) of the constitution as read with Section 12 of the Industrial Court Act.”
5. A perusal of the Notice of Motion darted 25th August, 2014 and the Petition of the same date shows that the issues in dispute arise from an employer employee relationship between the grievant and the 1st Respondent.
6. To this extent, this court has jurisdiction to hear ad determine the matter.
7. With regard to the non-joinder of KUDHEIHA, this cannot be fatal to the suit since, joinder may be ordered upon application by either party or at the behest of the court if indeed KUDHEIHA is a necessary party.
8. Whether or not the grievant is a member of the petitioner is a question of fact to be determined in the course of the hearing of the matter.
9. This matter deals with the dismissal of the grievant whereas Industrial Court Cause No. 756 of 2013 is a recognition dispute between the Petitioner herein and the 1st Respondent. The allegation that this is the same suit as the one in Cause No. 756 of 2013 has no basis.
10. Objections 4 to 9 are incapable of resolution without hearing the merits of the case.
11. For these reasons the preliminary objections are not upheld with costs in the cause.
Dated and Delivered at Nairobi this 28th day of January, 2015.
MATHEWS N. NDUMA
PRINCIPAL JUDGE