Okiya Omtatah Okoiti v Attorney General & 5 others [2015] KEELRC 54 (KLR)
The bottom line
#The Employment and Labour Relations Court refused to declare a planned nurses' strike illegal, ruling Kenya's total ban on strikes in essential services is unconstitutional.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the petition
The Court has exclusive jurisdiction over the lawfulness of strikes in essential services and the terms and conditions of nurses, by dint of Article 162(2) and Article 165(5)(b).
The subject matter - legality of strikes in essential services, adequacy of statutory dispute resolution in essential services, and terms of service of nurses in county governments - falls within employment and labour relations under Article 162(2). Article 165(5)(b) ousts the High Court's jurisdiction over such matters. The Court of Appeal's decision in Mugendi v Kenyatta University, approving USIU v Attorney General, was applied.
Constitutionality of section 81(3) and 78(1)(f) of the Labour Relations Act
The absolute prohibition of strikes in essential services is an unconstitutional limitation that derogates from the core content of the right to strike; the legislature should revisit the provisions.
Article 24 requires that limitations be clear and specific and not derogate from the core of the right. Section 76's procedural limits pass muster, but sections 81(3) and 78(1)(f) completely nullify the right to strike in essential services guaranteed by Article 41(2)(d), and are therefore void to the extent of the inconsistency under Article 2(4).
Whether a comprehensive legal and policy framework should be compelled
No declaration or mandatory order was granted; the LRA provides sufficient dispute resolution mechanisms including mandatory conciliation, and employees in essential services only need to conclude a CBA with an effective dispute-resolution framework.
The Court found recurring strikes stem from the absence of a registered CBA at national and county levels rather than the absence of a legal framework. It noted devolution of health to counties, recommending that a common CBA negotiated through the Council of Governors would better serve health workers across counties.
Whether the 6th Respondent's cross-petition was competent
The cross-petition was incompetent, collusive and an abuse of process, and was dismissed.
The 6th Respondent fully supported the petition and thus could not file a cross-petition; a cross-petition must oppose the main petition. It also failed to disclose specific constitutional violations by the petitioner against the 6th Respondent, and violated Rule 15(3) as read with Rule 15(1) of the Practice and Procedure Rules, 2013.
Legal principles established
#- The ELRC has exclusive jurisdiction over employment and labour relations matters, including strikes in essential services, terms and conditions of nurses, to the exclusion of the High Court.
- Workers have a constitutional right to strike under Article 41(2)(d), adequately limited by section 76 of the LRA (cause, conciliation and seven days' notice), but the absolute prohibition in sections 81(3) and 78(1)(f) LRA on strikes in essential services derogates from the core content of the right and fails Article 24(2)(c).
- A party that supports the main petition cannot file a cross-petition; a cross-petition must oppose the main petition.
Court orders
#- 1.The Petition is dismissed with no order as to costs.
- 2.Leave to file the 6th Respondent's cross-petition is refused; the Court declines to allow the filing of the cross-petition as an abuse of the Court process.
- 3.The cross-petition is dismissed with no order as to costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Act 2014 (as amended) and Article 165(5)(b)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Attorney General & 5 others [2015] KEELRC 54 (KLR)", Case Analysis (2015). Petition dated 19th November 2014 (not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/54/eng@2015-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.