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ELRCDismissedNotice of motion dated 31st July 2015 in a suit with amended memorandum of claim dated 7th August 2015

Kenya National Union of Nurses v Cabinet Secretary Ministry of Devolution and Planning & 2 others [2016] KEELRC 1111 (KLR)

Employment and Labour Relations Court
31 May 2016
MNMATHEWS NDERI NDUMA
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court refused to order Kenya's government to reinstate nurses' medical allowance, saying the union failed to prove its case could succeed at trial.

What this practically means

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Executive summary

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The applicant union, through a notice of motion dated 31st July 2015, sought an interim mandatory injunction directing the 1st and 2nd respondents to reinstate the medical allowance previously paid to its members and other civil servants, which was removed on diverse dates between 2012 and 2014 pending hearing of the main suit, in which it seeks a declaration that the withdrawal was unreasonable, unlawful, null and void. The respondents opposed, arguing that the medical allowance was lawfully converted with effect from 1st January 2012 into a comprehensive medical insurance scheme under the NHIF, that NHIF deductions are lawful under the National Hospital Insurance Fund Act sections 15 and 16, that the applicant represents only a small segment of affected civil servants, that a related constitutional petition (Nairobi High Court Petition No. 61 of 2015) was pending, and that the court lacked jurisdiction over matters best left to the legislature. Applying the Giella v Cassman Brown principles as adopted in Mrao Ltd v First American Bank, the court held that the applicant had failed to demonstrate an apparently infringed right or irreparable injury not compensable by damages. Relying on the East African Court of Justice decision in Mary Ariviza, the court declined to determine the merits at the interlocutory stage. The application was dismissed with costs in the cause on 31st May 2016.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the applicant has satisfied the requirements for grant of interim mandatory injunction pending the hearing and determination of the suit

Key legal issues

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01

Whether the applicant satisfied the requirements for an interim mandatory injunction (prima facie case, irreparable injury, balance of convenience)

Holding

The applicant failed to establish a prima facie case with a probability of success or irreparable injury not compensable by damages, so the injunction was refused

Reasoning

Applying the Giella principles as adopted in Mrao Ltd v First American Bank, the court evaluated the material presented and found no apparently infringed right demonstrated. The court also noted the respondents' position that the medical allowance was converted into a comprehensive NHIF medical scheme from January 2012, and declined to prejudge the merits, holding that a decision must await full hearing of the main suit.

p. 3

Legal principles established

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  • A prima facie case is a genuine and arguable case showing an apparently infringed right calling for an explanation or rebuttal from the opposite party
  • An interlocutory court should refrain from determining the merits of the case or the defence, which must await full hearing of the main suit

Court orders

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  1. 1.The application dated 31st July 2015 seeking interim reinstatement of the medical allowance is dismissed with costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MN
MATHEWS NDERI NDUMAPRINCIPAL JUDGE
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007 and Constitution of Kenya 2010 obligations referenced; no specific jurisdictional provision cited)

Relief refused

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Interim order directing the 1st and 2nd respondents to reinstate the medical allowance removed between 2012 and 2014 pending hearing of the main suit

Applicant failed to demonstrate an apparently infringed right, irreparable injury not compensable by damages, and the court declined to determine the merits at interlocutory stage

p. 3

Costs

costs in the cause

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The principles for granting an interlocutory injunction are that; a. The applicant must show a prima facie case with a probability of success; b. An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages; c. If the court is in doubt, it will decide an application on the balance of convenience.
p. 3principles for interlocutory injunction
The application lacks merit and same is dismissed with costs in the cause.
p. 4disposition

Issues in the judgment

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minor

The 1st and 2nd respondents are referred to by number but their full names are never stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya National Union of Nurses v Cabinet Secretary Ministry of Devolution and Planning & 2 others [2016] KEELRC 1111 (KLR)", Case Analysis (2016). Notice of motion dated 31st July 2015 in a suit with amended memorandum of claim dated 7th August 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1111/eng@2016-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.