Kenya Union of Clinical Officers v Clerk of the County Assembly, County Government of Kisii & 2 others (Petition E028 of 2024) [2024] KEELRC 2854 (KLR)
The bottom line
#The Employment and Labour Relations Court upheld Kisii's power to create its hospital corporation and dismissed the clinical officers' union challenge with costs.
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 Kisii Teaching and Referral Hospital Act 2024 is illegal and unconstitutional
- 2.Whether the recruitment done by the 3rd Respondent is legal
- 3.Whether the Petitioner/Applicant is entitled to the reliefs sought
Key legal issues
#Constitutionality of the Kisii Teaching and Referral Hospital Act 2024
The Act is legal, lawful and constitutional; it was subjected to extensive public participation and falls within the County Assembly's legislative competence
The Court reviewed Articles 174, 175, 176, 185 and 186 and the County Governments Act and found that County Assemblies may legislate on devolved functions under the Fourth Schedule. Public participation was held out on 6th April 2024 and conducted on 16th April 2024 at Kisii Cultural Hall, with a Select Committee report tabled, debated and the Bill passed. The Petitioner failed to demonstrate any infringement.
Character of the entity established by the Act
The Act establishes a County Corporation within the meaning of the Kisii County Corporation Act 2024, not a State Corporation
The Court accepted the Respondents' submission distinguishing County Corporations from State Corporations, the former being county government entities and the latter national government bodies. The legislation was therefore within the County Assembly's power and no attempt to create a State Corporation at county level was found.
Legality of recruitment by the 3rd Respondent
Recruitment was lawful as it was conducted in accordance with the Act, and no constitutional infringement was demonstrated
Having found the Act constitutional, the Court held there could be no illegality in recruitment done under it. The Petitioner adduced no evidence of a single constitutional infringement in the enactment or subsequent actions, and its failure to plead and prove allegations with precision weakened its case.
Legal principles established
#- County Governments, through their County Assemblies, have legislative authority under Articles 174, 175, 176, 185 and 186 and the County Governments Act to enact laws necessary for or incidental to the performance of devolved functions under the Fourth Schedule
- A County Assembly may establish a County Corporation as a county entity, distinct from a State Corporation under national government
Court orders
#- 1.Dismissal of the Petitioner's application dated 12th August 2024
- 2.Dismissal of the Petition dated 12th August 2024
- 3.Costs of the application and Petition to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya 2010, Articles 174, 175, 176, 185 and 186; County Governments Act
Relief refused
#Declaration that the Kisii Teaching and Referral Hospital Bill 2024 is unconstitutional
The Act was lawfully enacted following public participation and establishes a County Corporation, not a State Corporation
Declaration that the Respondents had no power to establish the 3rd Respondent as a State Corporation
The Act creates a County Corporation under the Kisii County Corporation Act 2024, a county entity, not a national government outfit
Declarations on the unlawfulness of recruitment/employment and quashing of employment of the Petitioner's members
No constitutional infringement was demonstrated; recruitment was in accordance with the Act
Costs
Costs of the application and the Petition awarded to the Respondents
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.
The Court finds it fit to dismiss the application and the Petition with costs to the Respondents.
The above demonstrates that the Kisii Teaching and Referral Hospital Act of 2024 was legally and lawfully enacted and it is not unconstitutional.
there is no attempt to create a state corporation at the County but instead a County Corporation which is a county entity and not a national government outfit
Both are misplaced, misconceived and an abuse of the Court process granted the fact the Petitioner was aware of the public participation that was undertaken
Issues in the judgment
#Numbered paragraphs 1-3 at the start of the judgment are blank; the judgment opens without any introductory narrative before setting out the application
The parties and cause title are not reproduced in the judgment text; the Petitioner's full name is never stated in the body of the judgment
The judgment appears to dispose of the Notice of Motion together with the main Petition on the merits, although the motion sought final declarations at what is described as an interim stage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Clinical Officers v Clerk of the County Assembly, County Government of Kisii & 2 others (Petition E028 of 2024) [2024] KEELRC 2854 (KLR)", Case Analysis (2024). Petition dated 12th August 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2854/eng@2024-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.