[2016] KEELRC 1815 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS

COURT OF KENYA AT NAIROBI

PETITION NO. 62 OF 2015

THE PUBLIC SERVICE COMMISSION…..…........................1ST PETITIONER/APPLICANT

THE CABINET SECRETARY MINISTRY OF LABOUR

SOCIAL SECURITY AND SERVICES…….......................….2ND PETITIONER/APPLICANT

MINISTRY OF DEVOLUTION ……..........................…..…... 3RD PETITIONER/APPLICANT

THE TEACHERS SERVICE COMMISSION .....…...................4TH PETITIONER/APPLICANT

THE CABINET SECRETARYMINISTRY OF EDUATION …..… 5TH PETITIONER/APPLICANT

VERSUS

TRADE UNION CONGRESS OF KENYA……............................…………….1ST RESPONDENT

TOM ODEGE, THE CHAIRPERSON, TRADE UNION

CONGRESS OF KENYA …………….………............................….……..…. 2ND RESPONDENT

WILSON SOSSION, THE SECRETARY GENERAL,

TRADE UNION CONGRESS OF KENYA ……............................……….…. 3RD RESPONDENT

THE NATIONAL HOSPITAL INSURANCE FUND…...........................1ST INTERESTED PARTY

THE COUNCIL OF GOVERNORS ……...........................…….……. 2ND INTERESTED PARTY

M/S Mbilo for petitioners

Mr. Nyanyuki for 1st and 2nd respondents

Mr. Mbaluto for 3rd respondent

Mr. Otieno for 1st interested party

RULING

The notice of motion dated 2nd July 2015 and filed on same date was heard exparte and interim orders granted in terms of prayers 1, 2 and 3 of the notice of motion.

Only orders 4 and 5 to the effect that there be a temporary injunction restraining the respondents from commencing and participating in any form of industrial action pending the hearing and determination of the petition are pending determination.

The application is based on the grounds set out on the face of the application and in the supporting affidavits sworn by Simon K. Rotich, Amb. Rachel Omamo and Nancy Macharia. The application is augmented by submissions by the applicants and the 1st interested party. The application is opposed vide a replying affidavit of the 3rd respondent and written submissions by the 1st and 3rd respondents.

The main issue for determination is whether the applicants have met the threshold for the grant of temporary injunction as articulated in the landmark case of Giella V. Cassman Brown Co. Ltd. [1973] E.A. 358 – 360 that;

the applicant must establish;

a prima facie case with probability of success;

the applicant is likely to suffer injury / damage that cannot adequately be remedied by an award of damages;

the balance of convenience favours the grant of the interim relief.

With respect to the first requirement the applicants have demonstrated that they have an arguable case that the respondents did not comply with part X of the Labour Relations Act, No. 14 of 2007 under which the calling of strikes and lock-outs are regulated.

The relevant sections include sections 76, 77 and 78 of the Act. To this extent, the applicants have established a prima facie case with a probability of success. This finding is sufficient to warrant grant of a temporary injunction in terms of prayers 4 and 5 of the notice of motion restraining the respondents from commencing and participating in any form of industrial action pending the hearing and determination of the petition.

A protected strike, is a constitutional right of employees and employers in terms of Article 41 of the constitution of Kenya, 2010 and ILO convention 87 and 89 on freedom of association and collective bargaining. This right and freedom must however be exercised within the statutory guidelines otherwise, the Labour Relations Act, 2007 would be rendered otiose.

The second and third considerations are in favour of granting the orders sought by the applicants.

The court has refrained from getting into the merits or otherwise of the petition at this stage. This must await the full hearing and determination of the case.

Accordingly, the application is granted with costs in the cause.

Dated and delivered at Nairobi this 22nd day of January 2016.

MATHEWS NDERI NDUMA

PRINCIPAL JUDGE