Joseph Otieno Oruoch v Kenya Medical Practitioners Pharmacists & Dentists Union & another [2021] KEELRC 1147 (KLR)
The bottom line
#Kenya's Employment Court ruled health workers can strike, but only if hospitals keep a minimum service running to protect patients' lives.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Employment and Labour Relations Court has jurisdiction to determine questions of constitutional interpretation and enforcement in employment and labour relations matters
- 2.Whether the Petition is res judicata having regard to Petition No 70 of 2014 (Okiya Omtatah Okoiti v Attorney General & 5 others)
- 3.Whether the Petitioner pleaded the constitutional violations with the precision required by Republic v Anarita Karimi Njeru and Mumo Matemu
- 4.Balancing the right to life and the right to industrial action for workers in the health sector
- 5.Limitation of the right to industrial action for health workers
Key legal issues
#Jurisdiction of the ELRC to interpret and apply the Constitution
The ELRC, being a court of equal status with the High Court under Article 162(2)(a), has jurisdiction to interpret the Constitution and enforce fundamental rights in employment and labour relations matters; the phrase 'High Court' in Article 165(3)(d)(i) includes the two specialised courts
Applying Articles 259(1) and 259(3), the court adopted a purposive interpretation reading 'High Court' in Article 165(3)(d)(i) to include the ELRC and ELC, limited only by subject matter. Article 162(2) ousts High Court jurisdiction over employment disputes. The court relied on Spedag Interfreight, USIU, Mugendi and the Court of Appeal in Okiya Omtatah to settle the point. Karisa Chengo was distinguished as concerning criminal appeals only.
Res judicata
The Petition is not res judicata because the issues it raises - balancing the right to life against industrial action and limitation of the right to strike for health workers - were not before Nduma J in Petition No 70 of 2014
Applying the conjunctive elements restated in IEBC v Maina Kiai, the court compared the reliefs and issues in Petition No 70 of 2014 with those in the present Petition and found no overlap on a prima facie basis. The earlier petition concerned the constitutionality of Sections 78 and 81 of the Labour Relations Act and a framework for essential services disputes, not the balance between life and strike rights now in issue.
Precision in pleading constitutional violations
The Petition satisfied the 'precision principle' as it set out the violations complained of together with the relevant constitutional provisions, enabling the court to frame specific issues
The 2nd Respondent relied on Anarita Karimi Njeru and Mumo Matemu. The court examined the pleadings, which cited Articles 26, 25(a), 37, 41(2)(d) and 43, and found that specific issues touching specific rights could be drawn from them. The objection failed.
Balancing the right to life against the right to strike for health workers
An outright prohibition of strikes by health workers would derogate from the core of the right to strike; the right is qualified and contingent on retention of minimum service at affected facilities
Applying the Article 24 limitation analysis, and drawing on ILO standards, the European Social Charter, and South African and Canadian authorities on the 'minimum service' doctrine, the court held that hospital services are essential services but the answer is a minimum service formula rather than a blanket ban. The court noted conflicting ELRC decisions by Nduma J and Onyango J and sided with a qualified right.
Legal principles established
#- The jurisdictional limitation on the Employment and Labour Relations Court and the Environment and Land Court relates only to subject matter; these courts may interpret and apply the Constitution within their specialised spheres
- The right of health workers to strike is qualified and contingent upon retention of minimum service
Court orders
#- 1.Industrial action by health workers is not permitted unless there is a known and acceptable formula of 'minimum service' retention at every affected health facility, in addition to limitations imposed by the conciliation procedures set by the Labour Relations Act
- 2.The Cabinet Secretaries in charge of Health and Labour, in conjunction with all major stakeholders within the health sector, shall within 12 months from the date of the judgment develop and publish guidelines to give effect to the minimum service requirement
- 3.The Registrar of the Employment and Labour Relations Court is directed to serve the judgment upon the Attorney General as well as the Cabinet Secretaries in Charge of Health and Labour
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act; bench constituted under Article 165(4) by the Chief Justice
Relief refused
#An injunction barring the Kenya Medical Practitioners, Pharmacists & Dentists Union and the Kenya National Union of Nurses or any of their branches from exercising rights under Articles 37 and 41(2)(d) of the Constitution
An outright prohibition of the right to strike would derogate from the core of the right, which the Constitution does not contemplate
A declaration that the right to life is greater than the right to picket and to go on strike and a finding that these rights are inconsistent with the general intent of the Constitution when applied to members of the unions
The court instead held the right to strike qualified by minimum service retention rather than subordinate to the right to life
A declaration limiting the rights under Articles 37 and 41(2)(d) for members of the unions as outlined in Article 24(1)
The court declined an outright limitation and framed a qualified regime requiring minimum service retention
Costs
As this is public interest litigation, each party will bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Industrial action by health workers is not permitted unless there is a known and acceptable formula of 'minimum service' retention at every affected health facility.
The Cabinet Secretaries in charge of Health and Labour, in conjunction with all major stakeholders within the health sector, shall within the next 12 months from the date of this judgment, develop and publish guidelines to give effect to order (a) above
the jurisdictional limitation placed on this Court is only with regard to the subject matter of the case; it has nothing to do with the question whether application or interpretation of the Constitution is involved
the phrase 'High Court' appearing in Article 165(3)(d)(i) of the Constitution must be read and interpreted to include the two courts of equal status being the Employment and Labour Relations Court and the Environment and Land Court
the right to go on strike for these workers is qualified and is therefore contingent upon retention of 'minimum service' at the affected facilities to ensure that there is no danger to life or health of members of the public
As this is a public interest litigation, we direct that each party will bear their own costs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Mombasa v Kenya National Union of Nurses (Cause E001 of 2025) [2025] KEELRC 2960 (KLR)[2025] KEELRC 2960 (KLR)30 Oct 2025applied
- County Government of Kiambu v Kenya Medical Practitioners, Pharmacists and Dentists Union (Cause E466 of 2025) [2025] KEELRC 1656 (KLR)[2025] KEELRC 1656 (KLR)3 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Joseph Otieno Oruoch v Kenya Medical Practitioners Pharmacists & Dentists Union & another [2021] KEELRC 1147 (KLR)", Case Analysis (2021). Petition No 17 of 2015 (formerly Kisumu High Court Petition No 17 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1147/eng@2021-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.