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REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT


AT NAIROBI
PETITIONNUl,WBER 72~0F 2015
TEACHERS SERVICE COMMISSION ........................... PETITIONER
VERSUS
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KENYA NATIONAL UNION/OF. TEACHERS .. ..... .'\1'"' .. RESPONDENT


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KENYA UNION

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EDUCA~ION;TEAbJIERS!!;~~~..,~:.~:~: ..... ~,{~J&~jt'~S:: ....... 2No RESPONDENT


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1.

The present

c4WP~,>'::;><;c

petif1~~:~.a,i~.>fll~d d~~~~~t~F~~. with an interlocutory

Notice of Motion
the main:-

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dat~d

2nd

Se;~;rrltr,~,i;~:~i),15:.seeking
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orders 1n

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(a) That there be a Con~rtratory .:qr~~F\"., prohibiting the


Respondents, their officials, ~Grvants/c.<~'ghti~ and or their
members from calling or participatihgih ctny~trike on account of
the non-payment and or delayed. payn1et\t of the salary
increments ordered by the Court to pe pftid :With effect from 1st
August 2015.
.,

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(b) That the Conservatory order issti'~d under 2 above to remain


in force until the hearing and deterf:n!nctj:io:p.. of the petition or
until further orders of the Court.

2.

The motion was based on grounds among others:-

(a) That the Respondents hav~ called all teachers in public


schools on strike with effect (rom 1 81 September, 2015.
(b), .That the strike has been called in violation of constitutional
provisi6hs and without observing statutory procedures under
the Labour Relations Act No. 14 of 2007.
(c) That the strike violates the P,~#~r~trer's rights and
4
,fundamental ,,;freedOms under AtticlJ~t':;@~~
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' 48 and 50 of the
ConstitutioD:t';,<" c> , ,
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d fundamental freedoms of
cflU<fren a~~ttditr'&"tJ~b!~~r(~~~~J~;~i:ts guaranteed by Article 53 of
the Constit\.rt.!grt.;''" ':L~(;:;,; :~!\;,,~J~~,,},+/
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(e)

That 1}.~.{.

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>{~;~;;~~~~r;~~~-~ ~f;: :

~tfike is ~~~~~~;,~~~17~
policy;,
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3.

4.

The

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respondent~ PJ'l~Q~e!i 'fhe,Qtfl~>~(lugh('in

. Motion by filing :t'A~tj'~~ of


7th September, 2015.

the Notice of

pref~~~~:tion dated 4th and


:,:;," ,:;',''

The objections were in the main that;(a) The matters raised were res judicata,
was functus
officio, the application was a blatant abuse'oftbe~~burt process and
that the petitioner had become a vexatiod';lifl~~t}':~;.
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contetided:~hat'the"~otion

(b) The respondent's further


sought the
review of the judgment in Petition j\~o7~,S~>,()f,,'2o"t5;, and reverse the
decisions of the appellate Courts ind\lditig tbec'''S:1Jpreme Court. It
was further contended that the petiti~:tl~~h:d th~::'fnotion sought to
elevate a simple contractual obligation disagreement into a
constitutional issue hence an abuse of the Court Process.

5.

On 4th September, 2015 when the parties herein appeared before


Lady Justice Monica Mba.ru, and

af~er

hearing submissions by

Counsel, the learned Judge ordered among others that the


Industrial q..otion

Thy

the respondents was unprotected.

She

further ordered that both parties be heard with respect to the


Preliminary Objectioh'~by the respondents whil,);,cwas to be filed
and beheard on lOth~eptember, 2015. ,
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5.

On

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ldth;"$epte~J?er, :?'015':~~en ~~~;~es appeared before me,


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J~rfued; as

matter

w~s

No. 3 of

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Senio'r;~,,@~~ns.~l{9)i~rithe

Mr. Ahmednassir
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hoti:'se~k:eepi~~~.:i~~~~e,

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an.offspring of

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:eu,;gm.ed that since the


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~1!$:W$e~'iNderi's,juqgment

201S, the~learnledtf~~~~~;::i\W~s
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handle it.

1st respondent in what

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in Petition

,th:e, o~e best placed to

~t. ''1"~\it\;1\ifllite ~~n(~r,~;~~~se1 also for the

1st

respondent concurred 'f;With submis#\@:ti[Ic:'f~y, J\1r. Ahmednassir


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and Mr. Harun Ndumbi while,,~greeing'';~~;:i,mlJ:c~:.added that the


petition and the motion was

~ attem~t,,\\~5~;i,fe\riew
'.-

Judge Nderi's judgment in Petition No. 3

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or amend

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Mr. Obura, for the Petitioner on the oth,~r';p..a,llclsubmitted that


the prayers in the Petition were differen~"f~,8w the judgment of
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Nderi J in Petition No. 3 of 2015. Acco~ding tbtMr. Obura the


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Petition was anchored on the strike Cafl~ci~'by th~' respondents on


1st September, 2015. Mr. Kiragu Kil11.ani:'ruso ;f6r the Petitioner
agreed with Mr. Obura adding that the respondents were
changing since they had wanted the matter to be heard by more
3

than one Judge and now they were changing that it be placed
before Nderi J.

Mr. Bitta for the Attorney General associated

himself with submissions of Mr. Obura.

7.

After considering arguments by both sides, I ruled that the


Motion and the Petiuidn raised new issues and was distinct from

judgm~nt of Ndf:!ri .J in Petition )'It(.~.~~f 2015 since it


questioned;~,the lega\tfr of. th~ strike;c~~I~d. by the Respondents

the

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on 1st Septemb~r, ~0.15 anct,co~c;~r~eq. Government's fiscal and


budgetary

procedur~s, fnq~\.~w~~fit~Mi~;funds
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ordered payable to

th'e. re,s'ponden t 's Ip.~mber~. cotil~:r:~.~~<:l!:ctwn.

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8.

After dispbsing of tKe

lor~g~i~

~~~~t.,if'~a~ ~:reed

by consent

that}t3_$~'~"Way fot\V~~::~~:Jn the interest of time,


the Notice of Moti~n.dated 2nd S~pt.~ll-t~.~~,;@.()>l5 be merged with
of the parties

the Petition and argued as part

of.:t~~:.~~tltion

and in that

regard, I directed that the Respondents 'tc:>~;U!~.>flhd serve their


response to the petition by close 0f busin~~~~.~~; next day and
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that parties file and exchange their s~eletgri, s~~l$issions before


the 15th of September, 2015 when I

fixeii~theJil~~ter for hearing.

These orders were duly complied with


as scheduled on 15th September 2015

a.ni.l ffi~ clMttter proceeded

ig~"Wh?-ti;.'l3J.ust admit was


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a long protracted argumentation whici{saw the Court sit for


almost six hours with only a break for twel]ty minutes. This was
a sacrifice the Court made in order to dispose of this matter

which has attracted public anxiety and interest especially the


children in public schools and their parents.

9.

Mr. Obura in his submissions before the Court identified the


folloWingsi~sues

for determination by the Court.

(a) :.Whether the Court .has

jurisdi~tion tR .~n\~rtain the present

petidm:).._
(5) . Does the I?~tifion raisf eonstitu,ti~~hl issues?
(c)

Whether

th~ '.i~sues~;;.tli~.pr~~bttt

p~tition no. 3 qfc20~i:~.

righ;f~

. : :. : 1:..;

petition were determined in

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(d). Is the
strike
of the C9nstitution absolute.
In othJr words doeR arti<;l:.~rfJ:Hfii1e':'~onstituti8!;J. dispense with the
. , _\
requirement .. t9 giv~ I]ptice 0fs.tri~e~{~s:.provided under section 76 of
the Labour Rel~ti\Dlis'"A:ct?
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sfarl~r'tJ/~ring

(f) Does the Petitioner have the locus


the present
petition on its behalf and that of the school/goiE,g~bildren in public
schools and people of Kenya generally.
. . . y.

10.

The foregoing issues as flagged by Mr. Qbura:~'l;oadly form the


substance of the submissions made befon.~ 1nt:!;;.}:>y
Counsel for
.,_
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the parties in the matter and Will therefore<~fm.r~dopted in this
judgment in considering the issues :fc)f det~rniina~on.
(a) Does the Court have jurisdiction to entertain the Motion

and the Petition?

To this Mr. Obura submitted that section 12 of the Industrial


Court Act gives the Court jurisdiction. According to Mr. Obura,
the Court must have jurisdiction to enforce Labour rights under
article 41 of t}le Constitution and to interprete the Constitution
generally. In support of this submission Counsel relied on the
case of United. States International University Vs. Eric
Rading,{2012) eKLRand.:Prof. Daniel N.. Mugendi V. Kenyatta
~

University &
-.:..,

inCidental
disputes.

Othe~s:(20l3)".eKLR'f,ML
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Bitta for the Attomey

constitut16naJ.\,~a_~~~.~~,;!j.~~ich ar1se in employment


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11.

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None of the resporlden ts r~s~~~a~~ to the stigmission by Mr.


Obura on this poiV.t.T,:Tl:ie CoutJih~~f<?re.rules that the decision
of Majanja J in the USIU case

;,hi~h:\Va$aci<:>pted by the

Court

of Appel in Prof. Mugendi,s case settle(i:.;tli~s;'ij'txestion whether


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this Court does have jurisdiction to

int~t~f~.t~;;.~Constitutional

questions arising from claims for preach

q~}t11l;[Iamental

rights

however such jurisdiction must be construed it the context of


breaches

which

substantially

occur

context

of

employment and or labour Relations.

12.

(b) Does the :Petition raise Constitutionalissil~s?


.:(.

On this issue Mr. Obura submitted that his client had pleaded
that its rights under article 30,48 and 50 of the Constitution
6

had been violated.

Counsel submitted further that the

respondents had violated children's rights under article 53.


According to Mr. Qbura, the strike further violated public rights
as enshrined. in trre constitution.

Counsel further submitted

that both sides are claiming rights under the Constitution hence
the Petition raises cdr:istitutional issues.

13.

Mr.

Bitta .;\:in sup.pprt of this~ .p0.!J::.}.t .submitted

that

the

~veryoAe ins~~;cti~g the state to protect and


promote rigl1'ts under it\'fJ~\\ii~~('S!J"bmitted that under article
2d thR petitioner:hacl>a(J;u~{~~~~~~ZI~~ss th~~needs of vulnerable
Constitliition enjoins

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groups in the.sod.~ty and q~!i(rei:.~~ incfud~d in this group.


He

furthe~ sub!Ilitt~'d

that' fe~Bff~~~.~e pub1iei:$6fficers and have

a duty to protect mlh.erable gr~UP~: .


- < /' ,- .

14..

Mr. Ahmednassir for the

Ist

respondyfu.i:~'briz:~the other hand

submitted concerning this issue that


questions the rule of law. According to

tn~;~~~Jition as filed
Cotl.rr~~~; it showed the
k"-.

conduct of the petitioner in trying to Jelect whic~.pourt Order to


obey which according to him was an attaGkcori!t2fne integrity of
the judicial process. He urged that the Cpurtpj.u,St be robust in
defending its orders.

15.

Counsel further submitted that the present' .petition was a


collateral attack on the judgment made in petition No. 3 of 2015.
According to him parties cannot be allowed to relitigate issues
7

endlessly through superficial changes. Mr. Ahmednassir further


submitted that the provisions of the Constitution cited in the
petition do not create a rights which can be litigated.
th~t

conceding

While

rights under article 30, 41, 50 arid , 53 can be

litigated 'as Constitutional questions but for the petitioner to


pro~~~ons

succeed it must however show how these

have been

violated bythe respondent.


16.

(c) Were the q~~stibns' :i~,:,1the,~pr~se:I1t petition similar and


were they

resolved;tby''t~';(tJ~9i~'~'(i~f in Petition Number 3


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2015.? In othe'r,woJ:ds

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is.the;~presel!t

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On this issue

Petition res yud1cata?


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.M:r.,:~.,ob1uta.:;su6lliitt:ed
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of

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that';'the
same was
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determined by rrtY;.rnlY:rlg on 'i'o~,.,spt~mber,


2015 when I
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became of the view that the Motiod :cthd the petition raised
different issues from those that wer~: Bef6te,(Iustice Nderi in
Petition No. 3 of 2015. According to

C~u#~~l;)~~e issue of the

befot~,J~~fice Nderi when


he decided Petition No. 3 of 2015. .. CpuQsel~f~fber submitted
that res judicata should be sparinglM: raie~~\~Xhs defence in
strike of 1st September, 2015 was ript

<'";";

Constitutional issues and on this pint h6~.soilgh_t :feliance on the


case of Okiya Omtata Okoiti Vs. AG &

17.

6:'0th~;s:t(2014 )eKLR.

Mr. Bitta in support of this submission stated that the matter


before the Court was in the realm of a public claim. It emanated
from a contract of service between the respondent's members
8

and the petitioner.

According to Counsel, the legality or

otherwise of the strike called by the respondents on 1st


September, 2015 brings the matter Within the jurisdiction of the
Court. Mr;.Bittafurther submitted that the constitution enjoins
everyone including the state to protect and promote rights under
it.

18.

Mr.

Ahm~db,assir

fof'the;

isrtespcn;~:Jd.etit qn his

part submitted

that the: subst:r:p:tJ.un bf ,ti1~:Ij,P>etiti(i)~i~i~~ the judgment in Petition

No. 3 of 2015
.

h~rie ~~)~'8_](lr~~J,\.~~ck.

To demonstrate, he

subm~tted ~at p!!t~IJhs:~t~~~~j;~,6 and.~.8 of the petition

advance same ar~ments as.~~et~;:~~vanced ir{'Petition No. 3 of


.

,, . . '

20 15. According to
asks the

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c6uris~Ft:';R~?~~f~:;'(d) and;(~)

of the petition

CoutttO'''F~Mie'iXrahd st~~:~h~.'ct~cision in Petition


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. and vacate the Judgmefit therein; :.~;lt: Was


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No. 3

view that the

~ourt pr~{~ess:ca:j'~~~gards Petition


No. 3. The Court should then~fore not allow~~,)tepeat process.
He further submitted that the Court had a cluty ttp stop abuse of
petitioner had exhausted the

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its process especially when it comes ftorn the st~t~. In support of


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this limb of submission Counsel relied on the;~~~


of Hunter V.
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~

Chief Constable of West Midlands & Anoth'er(l.':gsl) 3 ALLER


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727 and Community Advocacy &

18.

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Atvareri.~~s Trust

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Mr. Kiragu Kimani in reply to submissions by Mr. Ahmednassir


submitted that the Court ought to look at the pleadings and the
9

directions issued on 9th September, 2015. According to him the


Court should examine what the case for each party is, which
issues are live and which O:l:les were disposed ofin Petition No. 3.
He contended that the issue of res judicata was decided on 10th
September, 2015 when the Court ruled that the present petition
raises new issues. , AGcording to counsel the Cq14rt should seek
to find out.if there is .a strike and if so, W9:~<tll~:f'e notice prior to
calling the

19.

s~e ...

(d) Is the right to ~tril:e,tli;P.:4~~~t~~ticle 41 absolute? Does it

tb~ require~~~~~~gi~n()tice'under section 76 of


the Labour Rela{ions Act? ;iv~~: . :;.: ~.,~, ,
dispense with

On this issue, Nf;r..@'13>-tlra . fci~:.':.th~ J.peti#oner submitted that


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, Justice Mbaru had already stated til9:t~~rlipJoyee's rights under


article 41 (2)(d) are not
Counsel article 25 of

abso1ut~ but c~~B~:;Xi~~i~Q..


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According to

lists .tigM~~~:y.and freedoms

which are absolute and article 41 is not

ort~.6it~em.

It was Mr.

Obura's submission that section 76 ofthe Lahotir Relations Act


does not limit the right to go on strike.
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20.

The section provides for conditions


wb.ich.. rij_~st be fulfilled
'\
before a strike is called. According to Qgunse!~.; the respondent
did not follow the procedure under section

7g of the

Labour

Relations Act. Making reference to Handbook on Bill of Rights,


Counsel submitted that restrictions on fundamental rights 1s
10

measured against an open and democratic society. Mr. Obura


therefore submitted that limitation on the right to strike is to
control damage a .strike can ca1Jse and those i:nvolved to enter
into dialogue 'before a strike is called. Uncontrolled strike would
paralyse

~nstitutions

and the economy ultimately.

Hence the

right to go on strike must be balanced agqinst any other

fundame~tEti right sin~e a right cannot .be.,e~~;~fsed if it violates


other right~;:, In suw~ort 'Q~. ~his supfoission, Counsel relied on
the case of Fercy

Service$r,~Limite:d',,,v. Dock Workers Union


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Horacio Guido. kccording1~..


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stipulates conditions
strike.

b.iel, ILO ~onvention No. 87

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whi~l:li~riiij$t:.:lfj~>riiet

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wrior to calling of a

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The corlqition.:;rriust; be reasonable and there is an

obligation to give prior notice as

ri#t

of the standard rules

accewtable to family of nations and Ken),'t:l, ..ml;f.t not encourage


strikes at will even when theyhurt other paitie~1~:\
.;,,:r;;::-~,

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21.

:t:>

Conceming the present strike, Mr. Obura su~p-litted that the


right to strike and the children's right. t0 edtadation must be
"';.~.<

balanced but according to Counsel, the <:;hildren's right to


education outweighs the teachers' right

to' .'go

on strike.

Concerning notice, Counsel submitted that proVisions of the law


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have to be obeyed unless rewealed or declared unconstitutional


by a Court of competent jurisdiction.

11

22.

(e) Is the current strike illegal?

On this point, Mr. Obura submitted that Lady Justice Mbaru


had already' declared the strike unprotected for want of
proGedure.

Accordi:r:1g to Mr. Obura, the current strike is to

compel the petitionetto pay the award made i:ri Petition No. 3 of
2015 hence the strikejs being used by the;:respondents as a tool
of f!Xecutio!l of a Court's Jqdgment.
...

23.

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According td{ Couns.el, ~!~~4';?Al:;:~q~..]b~ Court Rules provides for


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pro~e.~lure

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ex~cutH~n))f~ t.J:i.S:.~t'W:udgm~:r')ts.c

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The respondent

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should .therefore. Jallow .thes~:~~~~.gutiop proce~ses and strike is


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not one of the means. of e~e~\t:itin'tft4~.:.C:rourt 1s Judgment.

24.

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Regarding the issue whether


the curre11t
stti:k:e
is a continuation
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of an earlier strike, Counsel, submitteci.;!n'altfl.e

5th

January

strike was called off and consent recorded bi'efore"9N.deri J ending


the strike. This being the case, Cqun$el S::t.Iptnitted that the
September, 20 15 was therefore a hew
issues and should have followed the
76 of the Labour Relations Act.

25.

:s.tH~~c~:~ased

1st

on new

procJ~du~e ~e! under section

Mr. Paul Muite, Senior Counsel for the 1st respondent in


response to Mr. Obura's submissions contended that the
intention of the present petition is to have the ongoing strike
decreed as illegal by the Court and teachers ordered to resume
12

work. If this is achieved, Mr. Muite submitted, the Court would


be assisting the petitioner and the Government in disobeying the
Court's previous order that the teachers be paid.

The Court

should therefore not countenance an abuse of its process.

26.

Regarding strike notice stipulated under seytibn 76 of the


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Labour :R~lations Act,


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Mr.

Muite subtilittetl that Labour


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Relations A<;t was a;~G07" l<;gi.slafion which predated the current

constitution~: AcGordirtgJo.(gouns~{\t,he~efore section 76 must be


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interpreted in line. with.~ sGti~J1;:~;~f'~'oof the

schedule to the

6th

rerid~~H\~J Dot. n~cessary to give notice


before a .strike is '';called. Nip;;.*1M~it~ .further: argued that the
backgrouncl.;tothe :burrer,tt i~t1~~~;1~~~"l.lld be H~~en into account

eonstiJfution in OJ;iier''to

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in considering w~et,~~t,,;it wa_s'.:h:~G:~~.~~ ;~p issue a seven days'


notice as providedunder

27.

secti6~'~d"HEth~:~t~l:)Gur Relations Act.


_,_._.

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According to Counsel, if the Court declares .:tJA~'S~trike illegal for

~~,~\ssue another
a~ted i~:;~h. It was Mr.

want of notice, the Union (respondents)


notice.

The Court would have then

>

<.~--~ ~'

Muite's argument that the notice was me~~ to give the

','%

petitioner opportunity to consider whetber,:J.o 'qoncede to the


respondent's demands but the petitioner alicf~,~~e government
has stated that it will not give in to the respot,ldent's demands

..

hence notice was not necessary under those circhmstances. In


support of this argument Counsel sought reliance on South
African case of Transportation Motor Spares V. National
13

Union

of Metal

Workers

of South

Africa

&

Others

(J2498/98(1998) ZALC 71.

28.

.
.
On the issue\whether the current strike is a new o:p:e, Counsel

submitted, that it was a resumption of an earlier strike hence no


new notice was necessary. Counsel further sp.btnitted that the
presentstrike is not

for~~nforcement .of th~.J~dgment of Nderi J

but about clf;mands,i;nade })y .the t~aGh~r$ which have not been
'

'

met whicl:l

'"\\'.;

':-

'"

<'

-J:< >

ocA:

~."'""'~

i~cllJcl~ .e~ecut19~~ar~:e.~~~-.CBA

were to. col16ede

to~ thes~/i~--

and if the petitioner

.~;:~~~;~ould end and there would

be no more strikes.

29.

Mr. Ndum{)i for the:2nd petit:i:<)fl~~':;~.Ubmitted on.)his point that a


.:r- .' ~' . ,::-~-

strike notice

\vaSicc_. trssaed' al~~a~gg Ji!tnecessary under the


:, ,,,,,

," .-r;... .,,, .,

current constitution.

.~. --::::L>~

<Y.,
.c '

'f.-<

"'
~ ~:~ ":: <~'

::_ :'

-~:~.::.J:<ii'i:':~:)..

A~ ;$}, ~' ~:;::~~~f~~~i1~~'

30.

Mr.

Kiragu

to . ~:~~ .

Kimani

\L\<1'

''k

c'

lOllS
,:;-,:>~ ::---t:<::i

by

the

respondent submitted that on 1Sth.January.;""2W.~i~~\a consent was

recorded calling off the strike which. _was >th~~-\:~ngoing.

The

December strike notice therefore ceased lbj:~.xis'tZ~-i' Regarding the

requirement of notice, Counsel submitted th~t Upder article 41


r.:--'.

'. ;~~' ~:::

,~ .

of the Constitution, every person has' . .~a rigb.~m:to


fair labour
'
.
<~l

practice.

The article does not provitf.~:;now't~g!le goes about

exercising these rights. This is within


Relations Act hence

there

is

no

t~~J;}fo~i~~e of the Labour


inconsistency with

the

14

Constitution.

According to Counsel, the right to notice before

calling a strike is also a fair labour practice.


31.

Mr. Kiragu,J-ilrther submitted that the object of notice was to


allowthe,addressee to avert a strike by looking at the demands.
Section 77(7) of the Labour Relations Act alloW~;,;an employer to
' , '-.):<

'Jn

come to 0ourt and seek iq.junction relif.''

prohibiting the

present s,tfike, the, Court'-.,;;-.; )would. nd:t I>e staying Nderi J's
Judgment since .Jh~ Judg~~:ttid :.m.B:t:) .sanction any strike.
0

.'

c.

-"

-~

.,<

Mr.

Kiragu further concurred .witH,JMr;: 0bllra's submissions that the


,

, > ;

1f~-:i2\~~ ~

_:

. pre~~,pt str1~e. is'1 Ior<:,,the: cnfi:i~~~lrier;t~ .of,,~deri J's Judgment


:e~~t~::. ,~~:7

which is ,u:npn:>.cecl~rBJ; sinc~~1


redress a

partY carlhot be" 11~


~;

'

\<i+$)tn~

. ;fcirl:fse
;'''

7
,

;~f

law Pl'&ovides avenue for

aa1ff~~bnt modality not

provided for in law;.:e<~@:unsel f:urther U,~mitted that a strike can


. only be in furtherance of a trade di;p1J.t6'anc:t.7,ajudgment is not a
'

'~ ~

trade dispute.

32.

(f) Does the petitioner have the 'locus t~~~iftii~~g the petition

on its behalf and that of school

goiiJ.g,chfJ'ttk~~;.and people of
~,;f.

'

~ .. ~, :.

'

Kenya generally and as a corollary is the 'p~f~tioner guilty of


contempt hence should not be heard?
Mr. 0bura submitted concerning this fssp.e tha~;the petition was
brought pursuant to article 22 and 258ofthe<:f6nstitution and
therefore confers on the petitioner the right to bring petition on
behalf of the children.

According to Mr. 0bura the petitioner


15

receives funding from the National Treasury and this follows


certain procedures.

The funds have not been availed to the

petitioner

respondents

yet

the

have

engaged

In

public

demonstratiOns accusing the petitioner of refusal to pay.

Mr.

Obura contended that you cannot force an employer to do what


it

canno~ do as to do .Otherwise would am~u~~,f~\servitude. Mr.

Obura fucrther complaine&,t1:J.at the respo:r;t~'e#fswere aware that

appeale~}:~gainstth:e]oi;tdgfuent in Petition No.


3 of 201:.5~ Therespondent~;cbn the'o.~~er hand have commenced

the petitioner had


.

.-

enforceme~~b;;proceedihg~0~~~1fep~ct:,pf~udgmen t in Petition No.


,,_

..;: "<'1"1>'~. .,".~

~~

..

. yet'th,ey ~e:also~on.. str:ik:e.~''A:f~:B,~!~iri~ tq.J)<?unsel therefore, the


'

'>

';<'

;';c'.

"-< " ; " /

"'::,->'

strike is intended t~ fru~tra~~:~fi:~;;fi~titfoner's ~ppeal and stating


its position

inthe''~nforoe~~~~~.:~~;~eedhl~s~/~yThe
~;;.

. ".::~;

'~

petitioner's

:.,".

_,_c.:')

-right of access toziQo~nt}'J.~:r'.the~~fore,r\;l;i}:~:~r threat. According to


>

,.

Mr. Obura, ignoring strike

"

~',<>i>'o"i.

'"

prb~ed~t~~'~i~l~tes public interests.

It seeks to compel the petitioner

t~ ~~~Y:.tl1~~ award

without

following governments budgetary procedur~~~

33.

Obura
s{iJsili:itted
.
proceedings have been commenced in th~ t~esp~~t~
On the issue of contempt, Mr.

' ..

34.

,,.

'~

that no

c:. z-;

Mr. Kiragu in support of Mr. Obura's s,t.fbmlss{dns stated that


~.'

article 237 of the Constitution sets


petitioner,

article

249(1)

(c)

out the functions of the

provide~

for

promotion

of

constitutionalism by the petitioner. The petitioner to this extent


have the locus to bring the present petition.
16

35.

Mr. Bitta for the Attorney General submitted that the Court had
children~

a duty to protect the rights of the


counsel, the
ongoing.

3rd

According to

term in the academic calendar is supposed to be

It will terminate in life

defining examinations.

Therefore time lost by.lhe children cannot be coinpensated.

36.

Mr. Ahmedhassir (or,

the .\Jst

'i.'',

l\,~:'-,- ~}:-

respgt?;d;et'l-t ,on the other hand

submitt~q thabthe ~etitio~6r' is ~;~~fe~fure of article


constitution)and undef

ahticle:~ii2~i:~.ii

theref0re as suchw Tacked


'

237 of the

is a body corporate.

~~R:.J'ffridical >persona
';

'-~

:';.::c, - ',

It

to file a

,'

constitutional petition .. Accp~<d:i~g;~'fi<f>.Counselr~Bill of Rights are


rights zn persona. 't:hider

~~i;~Y~i;~~~p th~ p~t'itioner

is a state

organ and any p~f,\:Qf(fhe Gov:eJ:1Ll.!);ietl,tr cannot litigate bill of


-, A

rights.

'

'

'

'

''['

:~

According to Counsel,. Bil.f~'~(.iijghts,.~e only litigated

against the state and not vice versa. Irl

~~~~H~f:2 appreciate the

M~.:A~~ednassir stated
be a~~~~~~#, then a right

constitutional anchoring of the petition,


that under article 22(1), there mu$t
'

''

, ~<- \j~),i'

and which right must be violated. Further, ~nd.~1r article 21 it is


} '

a fundamental duty of the state to protect,


the Bill of Rights. According to
over Bill of Rights.
vulnerable,

Counsel

Counsel~

~,

,_, .,

,'(,>~,,

ol;>~:~i:ve and respect


sJ~!eEcannot

litigate

Regarding litigation;over tl(e rights of the


submitted

that

prticle.. 21 (3)

of the

constitution as concems rights of children as vulnerable


members of the society can in event of violation thereof only be
litigated against the state and not by the state.

Regarding
17

allegations of slavery and servitude under article 30, Counsel


submitted that no empiric,al evidence had been laid before the
Court in support of the allegation in any event it was profound
that an organ of the state was alleging that it was being held in
servitude.

37.

Concerning, compulsion' on the petitioner',f(}:;fl.;8'\vhat it cannot


do, Cotinsel submitteCl tli.~t the petifiqpef\ d<:>es not generate its
'

: , --

'

<,

own funds and ~ere ,~~S}~~:ievid~!tlte, ~at the respondents were


compelling the

pe~tioncil',:i~,,~9i,~a~ 'it

cannot do.

resnondentk wer<s;,,s~'~kingt~~~~~h~p~6t for


other words, hqldihg a. patfyif~d';it~,\:ciwn

amount to slavezyL ot
children under

the,

Court order.

'

-.:

In

barg~~ and that cannot

seiV;itii~~.;:: . 'Cohcerni~g

a.Ftlicl~;5.3; thes~

What the

the rights of

e>nly?-pply vertically against the


._

' - ' 2, ,; , -~) ,'

state and never horizontally. Couns~hfl!i,r!Jiel': SJ..Ibmitted that the


right to strike does not

~un against state,:~0y~~~'gp.ty


.
c::>: " ..
x<:.:

.' >

'. "\~:i.;f~\:~~~1;\t~\}

38.

Mr. Kilukumi in support of Mr., Ah;rnedn'~s~w!s submissions


~.

',o;;,, "_., ..

--.--:.~"''

stated that the petitioner had no right qf ~t;i:~}i($nce before the


Court, since they had disregarded a Court

orde~;J{~Relying on the

ALLER 567 Counsel


contempt d'hu~f )fi~' resolved first

case of Hadkinson v. Hadkinson ( 1952')


submitted that the issue of

before the petitioner can be heard.

1\.ccord~))g to him, the

,<-,~

y~;;-,;

petitioner must purge the contempt and obey the Court order
regardless of what they think of it.

Mr. Kilukumi argued that

the continuation of the pay dispute between the petitioner and


18

the respondent has been camouflaged as a new suit and to


support this argument co:unsel relied on the case of Ramesh

Popatlal Shah & 2 Others v. National Industrial Credit Bank


(2014) eKLR and Econet Wireless Ltd Vs. ,Minister for
lnformatioU: & Communication of Kenya & Another :f2005)
eKLR. Mr. Kiluktimi:{urther submitted that under article 10 of
the Constitution, rule of law is one of tq~~rt~tional values and
every public officer' is :undet . duty to obserVe national values.
Accordip.g to Co:upsel, .the'I-;~~.1\Vas p.b'l:'ied to approach the Court

if the orders'h1ade will rl.~~~~~.4~J;>$~~e~:on this point he relied on


:_~--~.

' -i'

~.~1~-~:{.:f~~bf~~;,;~\~:_~:-~~~= ~,:~~/ ~<

~.fse of :Judiclal:Service~~l~~()m.;IDissi()n,,.v. Speaker of the


., . , <D~~-. < , . . _;_:~~~~~~ -~~;;_{<~~~>::~(;)~,.::, ..~::-~:::::;-~
~ _,,.-~?
National 'Assem~It & Arl.ot'liel.::t2.0.Ic3 ..eKLR.:! Counsel further

the,

"<.

>

"

> c

":.:}'(";~;._,~J:;"f-:-< .'

"':,

~f

.:..' .

submitted. that the' Court ..ifiij/$t:~#(5kto 'rutl';()f law and give


~

; ;

. >."

.~

'

justice to all. It was:.ihis . View that disdbe~ience of Court Orders


,.

""

".

"' ,
. . ~. '- ~::;:~}}~.

,.

undermine rule of law and akin to a;ftlhraFfor rule of law. If


>,

. ,,

\''';?:.;;. . ~ .

,:{"'>>"

these were allowed, public confidence intl:i!~~:01i;law would suffer.


~

-;-..._o'/c~"~-

-,,

"''"'

3 9.

Regarding article 53 and read together

,\",i'trf:f~~.ction

7 of the

gov~ri'f~~~t: has a duty to


teachers. tp" :f>r~~ services at a

Children's Act, he submitted that the


provide free education but not

lower rate. Hence according to him, it

w~st1I<:~Lgovernment and
,:+>

.-_ ~, "- F1;--\\ .:~-. _..

not the teachers who was violating the I}ght.s df;jhe children by
not paying teachers.

40.

Mr. Ndumbi for the

2nd

petitioner on his part submitted that the

issue before the Court was to make a distinction between article


19

41 and 53 of the constitution. According to him, the Court was


being asked to remove rigl:J. ts under article 41 by seeking a stay
of Judgment of Nderi J in Petition No. 3.

He submitted that

there had been nd utterance on the petitioner's obligation to


obey<respondent's right as ordered in Petition No. 3. Aceording
to him, the correct application of article 30 wo~ld
show that it
i
;

'"

A',~:';;,:

i' .f

was tHe petitioner , who was holding ~tJ;~~i,,~;respondent's in


ser:vitude ..c

Mr.
;

'

Ndumbi su]J).mitted .tli9-i;~he.:~etitioner has failed


'

'

-,;:

~.

_,

to disclfarge its duty,und~farticle24~(1) of the Constitution by

t]j~~'~;r;Q.~rs:~~.~Nderi J in Petition No. 3.


umaf .~~}"J>eBtioner,,e6.sought to have

faiHng to coinply with


Gounsel

submiH.ed

successfully appe~ed ~d. s~l]:gl:J.t):~h:a:~obtaihcl


a legal stay but
,>_ . ._
- >

'

':;:_ "

~~-;<;;

<

~,= ~-

According to coutj;~~l~;;j:{if]' the order~." .~p~gp.t were granted, the

. Court would be put .to. ~idicule.


:
;

co..:X~~~Fiimr:fher submitted that

:.-..

..

..

~ ~.; \_

the petitioner had a duty to uphold\ tl:J.~~HRrl~ of law.


petitioner, according to Counsel had a

The

du~~.t9<uphold industrial

peace in order to ensure the children's right$r~~~t~gsafeguarded.


41.

Regarding the award, hence the strike, ~d~~~~i,;ubmitted that


"->,

-i:'-. .F

conversation about the issues in displl:~e


judgment in Petition No. 3 have
nothing had been said why the

:ih:.ithe

sppnn~d o~et;'a

/>""

..

;_

respond~nt's
,

petition and
long time yet

demands were not


,

factored in the budget. According to hi~, the Court's order in


Petition No. 3 was just like any Court Order.

20

42.

May I at this point express my gratitude to all Counsel in this


matter for their insightfuland at times, very powerful and fiery
arguments that have 110t :only enriched my judicial mind but
have served to elucidate various aspects of the issues, of law that
were 'involved in this petition. I must thank them for their
tll~Y

industry and the high level of research

must have

undertaken to come up. 'Y:ith authorities'~'W'hich they thought


;',

WOJ.;!ld
,. ,.,"

',

..:.

cl;ssi~t.
;;

JtS

the

:.
\:, :-c,. ~/'~ .::>
.\::q:;.:;"\.>~:~>;~,~~('~~~~.
C~J:;trt ,iri,,.'gtJ),prec~qj,i~:g.t:zt:f:r~~dispute
' ,_-i

'""."ZK,'

""

;,

reaching. a fait .. determina#i6h.


.

.~

. <.

~ ~

~ \:C:: "'~ ''

r:rjl~~~Jii~t
.: :: .;,<:~:::~_y'

better and

have had time to go

through all of them buf'i~f;t~;tis:I):ot\4Siaythey were less important.


'Fhat having beeri sal'Ci}
as ab:>ove

havi~~;~~~{~~~d ~11b:>missions by Counsel

th~. Cou,rt'would pt{;fge.~d!,~tFfd~der itsilf on the same as


~,

--..

'

..

~:_

follows::..
(a) Jurisdiction of the,:. Court to he3.i\tllli~ 1 Petition.
As pointed out earlier, this issue although.iq~;ri~f~:~d as a ground
-~<-

of ob:>jection b:>y the

1st

L" :

;~....

respondent, JIO subnjs:s;ie'il"was advanced


oi-

in support thereof and the Court becci.riie

O,Ao"

,,

'',

c-'

0'

..~;

~f th~:~~w that it must

have b:>een ab:>andoned with the consequdbce tb~,.~is Court does


have jurisdiction to entertain the

prese~t p~tltiQh.
:::'

~~\:.;_ -~: .:'--.~: > ..

'Fhe Court

relies on the Court of Appeal's Judgm,eht iri:'Prof. Daniel N.


Mugendi V. Kenyatta University & Others (2dl3) eKLR and
':'"'

United States International Universit:Y<V. Eric; Rading 2012


eKLR. 'Fhe Court further adds that as was held in its judgm,ent
in Dr.

Anne Kinyua v.

Nyayo Tea Zone Development


21

corporation & 3 Others IC No. 1066 of 2012 (2012 eKLR), a


claim that a fundamental right under Constitution has been
violated or fair admin,istration procedure has not been followed
in the course of employer - employee relationship is a dispute
relating to employment and Labour Relations hence Within the
jurisdiction of the Employment and Labour Ryiations Court to
which th~ High Court has peen denied jtiris~fict!on by virtue of
article l6S(5J (b)
'

'

'

of~~
Con,stitution.
<
t

.....

.,,,

:C'-~

(b) Does the Petit'ion. tttl~'ec,~J)~~titlit1onal issues


'i

:':tr-,\, '.;.. A~,','t~~,~,,~i<"\.' ,,

~:

"'~ ~

.. --.,

Having

"'

"'

}>.~:_:'.:~):

considereJ;i;stibmissfg~~~;~;~k~.:C~~nsel f~r

this point the Court is

the parties on

of th.~:w8~'that the p'tition does raise

constitutional qu{!stx:&n~. Thf p{Vtitioner has alleged that the


. right to strike under article 4'1 (;) (d) :i;s
_,

right must be exercised as

'o: .

~6t;.?-bsolute in that the


~ .

>. {:-Y}_:::.).ff

stipulated>u{\de:Pc:;~~ction

76 of the

~:-~,~~-. ~~~ ~~;:;~\~;~:1T;:{~ ~~~,~~~~'i,

Labour Relations Act and such

regulation<~"Q~;~~ot

derogate from this constitutional right.


other hand have contended that the

in any way

Th.f~~:~W~ndents

on the

requir:el:ll~i-J:t~of notice under

section 76 of the Labour Relations Act priort9 g9ing on strike is


negation of the right to strike under .~tlple
,41 (2)(d) of the
."
-.:: ''-:"' . (.
,~

"'-~<

the respondents strike action seeks td frustrate: the petitioner's


right to fair hearing in the pending appeal and enforcement
proceedings pending before Nderi J.

These are by no means


22

ordinary questions of law. They touch on substantive rights and


obligations recognized by the constitution.

This alone without

more qualifies the petition as a constitutional petition.

The

Constitution is the supreme law of the land and any allegation of


violation or threatened violation of any right whether perceived
or actual recognizea: by the constitution must of right be
entertained by a Court of",90mpetent jurisdiction and a finding
-

"

~-

on the validity or otherwisepfthe allegation," be made. The Court


cannot e;c facie)'t;efuse

an~1egati~n, 1pfviolation
f',:_,-

of rights under

'>-

the Constitution withoutt~~~ltey~l1;g,0n')nerit.


" -- r ,

, '"-, ,

. -, :

''" , ~''

' ) ~- '/.v,~ C;',; \ ' , '

'

_<0:.._~<<'''

>o.{

''\'

"~

, ..,

. -

<j ; ><.h

,~;>' \;~~;~ .' .)

"'?i:~:.

. ~t-

'

. ~: ~~ -~_, . .~~~-~}:~l~t -~ :~-~:::; ,~ ~: f_::' _ '

(c) Are tbeJssues,in this R~fi~:igJ:lc+Same


''
"' :-

'

)'/

'., }

"-::'.

as those determined
.

in Petition: No.3 ol20l5?ih ,:,";

This question was partiq.Ily determine1'"Wliea


an 1Oth September,
..
;

,;

..

:::_

'

2015 the Court ruled that it had jurisdictH:>~tt:r:hear the petition


since it was based on the st~ike called by;,tiJ~?,~e&pondent on
September, 2015 and could not have

be~~~"Wi,J;hin
-:<" -". :-. . :.
:'\~

1st

reasonable

contemplation of Nderi J when he d(!livered';~s judgment in


Petition No. 3 of 2015 in June. The

Couftfurth.~r'Jound that the

petition concerned the dilemma by the

~etitioner over

where to

raise the funds to honour the judgment o( fh~, 'Court given in


Petition No. 3 of 2015 since the petitioper was bound by the
Government's fiscal policies and budgetary cycle.

This second

limb of the dispute as much as may appear to be an offshoot of


the judgment in Petition No. 3, it is not an issue that was
23

decided then.

All the Court did in June was to award the

teachers as per the judgment but no directions were given on


how the funds would be. sourced. In any event no Court would
concern itselfwith how a judgment debtor will honqur a decree
against him or her.

To this extent this is totally ,a new

dimension to the dispute which the Court>J,\fotes is being


addressecf:by the enforeem.ent proceeding~j;'~~fbre Justice Nderi
hen,ce the Gqurt will':~ay rio piore.

The Court h;;ts


and is

~o11:~idered sfi:~~Xl~~in~'.by .Cou,.nsel on this issue

of the view that~6.~d~k{~:fi~~~~h1bt~: . TJ:fe,.outer limit of a


'<-4;

right is the obligatrh'VI:;~to. exercise .tn~t. right in a way that


:'

:-.

';

~-'"<!'=-'::;_;\,-':~

'

respects rule of law and rights of'oth,efc persons reasonably


affected by the exercise of such a ;igk;t.
freedom of speech is check-mated by

.For instance the

the<~~tY'.~ot

to shout fire

in a crowded theatre when there is .no fjre sih the consequence


of such a practical joke is likely to be;gl:aye ..Jnfqther words the
'-'?..'

,c'>

recognition of rights under the constitU:ttpn .qr international law


has never been akin to licentiousness.

43.

The Constitution under article 41 (2)(d) re~ognizes the right to go


on strike as one of the fair labour practices however the article is
silent on how this right is to be exercised.

This is left to the

provisions of section 76 of the Labour Relation Act since the


24

Constitution has never concerned itself with procedural issues.


The contention therefore that in exercising the right to strike
under article 41(2) (o) a party can ignore the procedural
provisions contained in section 76 of the Labour Relations Act
may not in all cases

44.

b~

correct. But why do I say in all cases?

The issue Of teacher'~"pay and strikes conernin:g the same is of


notod~ty.

loc,al

EY"erypne' especialLy jn the education sector

including children

~d th~ public g~1.)eTally can safely be


, , __

--;.

said to

know about the ever feste~iilga:J;tr~.bi~~,~between the teachers and


'

'"

. - .. , ,

~>-""

.,.-;::; :>'=:\.>;>_~L;r

their ,~inployer, tile T~acher~ sciJ~e 0 gpm:r;nission and ultimately


',, .> '-/:-f\''

,--.>-~-,

the government. The ~atter;;'g(:t~~@fd:e'rs' strike has become like


'

;~:-.(;'~,-'

'

'

'

'

"

>

a ritual~ every Presid'ent sine~'Mt.Mcir, must g6through while in


office.

From

the;,~rff1 r~df Ambrose ' ;4-dPmgQ,

Ng'ang'a, and the late Pflvid Okuta

through to Francis

~0'~"~'6*: Mr. Wilson Sossion,

the mantra has been , "we :Want

de~eht,{~~il(aries for our


><

"

"

t'''

member$' and the signing of a Collective Barga;j,J:Iing Agreement


to provide a framework for future negotiations. ,!.,The petitioner
hence the Government on the
enough to

the

teachers

o~her

demands

hand

J;i~s

not yielded

arguing. ,that they are

unreasonable and if acceded to would pu]l


..

tg, unbearable levels,

the public wage bill and the governm~:rit's provision of other


l>:~:_

essential services and development ageif~~

45.

While I will return to the foregoing later, the Court observes that
the substance of the judgment in Petition No. 3 of 2015
25

consisted of documents, and submissions by the parties.

The

Court further notes that the proposal for 50-60 percent increase
was based on proppsalspresentedtothe Court oy the petitioner.
It is therefore. understandable from the respondent's view point

that 7 the omission or failure by the petitioner to honour its part


propos~<:I

by them and

pr()v;oqati~e

and justified

of the .bargain to pay 50-60 percent as


reduced as the awarc:lof the Court is

their right to call Jor;s~>stdke: ~thout :J19f:ice.


'--'.:-,~~'"-

46. In

:~,'.~_::

<

:r

~~~;.~/ ~,::~:\:.;:\''::

.:

I~dustriai relatiOns trat'1!i!r~Jti~J~~rkers' ultimate

arsenal in

terms~ ~d\condi{ig~.~E:.;}-.~;ervice: is the right to go on


while the .~triplqyer fl~s.~f~~t,~~i~ht to a;llock out. These

bargcrining
strike

rights are primary ahd are:tteeq~~~(J/botli bythe constitution


and ILO Conveht:i~ful.~~ . aBt:t wherep~ti~~i.tq. a trade dispute have

c~ns'ist~ntly 'e~~~g~~..~&.1;siither of them


stated its position 'wit~~~~f'l.\~.~y room
.. .

constantly and
categorically

has
for

{'

compromise, the issuance of a strike :o~l..~ri:r'\~il&ck-out notice


< '.;""'

becomes superfluous.

The petil:iqher
~

,: ~"

'f ~,;;.':/ '-'

heietii>~d
. r. >~~>,":"

its allies in

government have since the judgment.in Peiition.. No. 3 of 2015


.

..

made public pronouncements the sum effect qf.wJ;;tich is that the


judgment in Petition No. 3 of 2015

award.i~g:lliP~;respondents a

pay rise of between 50-60 percent will Jl.ot be;luonoured.

This

was presumably and especially after the Court of Appeal and the
Supreme Court declined to issue intetintrelie(.pending appeal.
What purpose would a strike notice therefore serve under those
circumstances? Or to put it the other way, would if today, the
26

respondents call off the strike and issue 7 days' notice as


stipulated under section 76 of the Labour Relations Act change
,>,

<

the petitioner's attituqe' of "Can't pay, won't pf.!y?'

47.

Whereas notice is an essential requirement of natural.jtrstice,


the

doctrine

preparatoire~

of '"travaux

interpretation persu<;.tdes rme that there


moments .s:Qch . as ,liis ol)e

m.a.y

when,:~:.'P~Bcedural

In

be compelling
step may be

ov~rlooked i~ o~der fd safe~ard ,~:;~~:sf~tive right.


-

'

'

statutory

Parliament

'-?-- --"'

in enacting ~ection; 76 ()tmffi:~~.:' 4 :~~trE.elations Act contemplated


-

a srp.ooth

'

'

,,._

~ '\';;;.? ' '

-,_~,

>

ihdustrial.'r'elatiori~

engage in gctod falt4.

, \ ' - . ;

<>;-;):o,-

~e;'parti~s .to a trade dispute

~q rtotf~~~~;~~ati~ o btruiiing herein where

the petitioner and fhe Mihit'&~!~~.~~~i~;.s~ppos~ti! to facilitate the


. '"2''
<-

,.

~.~

conciliation ofthei'i.~~raGie . disp.ift~~ h~s sl11ade his stand known


. concerning the very dispute.

48'.

Under article 20 of the constitution a do!l~t.li~,.enjoined when


interpreting the Bill of Rights

to ,~dopt ~,;;ji:rtt~~pretation
<

'

-~

; ~ .

that

most favour the enforcement of tb~t right.~;~; fundamental


.

freedom.

',.

~,

'-> . .

Further under article 24(1) q;. rigpf:'C>t fundamental

freedom in the Bill of Rights shall not b~: cb.nsfri..led as limiting


the right or fundamental freedom unles~~ the .. pfOvision is clear
..

,'

and specific about the right or freedomto be<limited


and the
.;--:,,:

nature and extent of the limitation and further a right or


fundamental freedom shall not be so limited as to derogate from

27

its core essential content. The foregoing having been said, the
Court declines to pronounqe the current strike as unprotected. _

49.

Before I exit the is~ue of the right to go on strike, l would like to


address tbe argumept that the respondent were usipg. the
current strike to enforce the award in Petition

50.

NQ~.--3

of 2015.

Having becqme of tl:l_{{ view_,that the (),tpin,encement date for the


present.strike was 1 ~e Sep:t~mber,,-2lt)JEf, its cause is conceded to
have very close

connecti),1;i;stP~Jl:t.:i"tl~gment in Petition No. 3 of

that . if ~as ''1lheX~~~~~~f:fe{us!tl the petitioner to


::~=~e:t}~::1::~:~~~~~;~ ::;;~;:er: :: =~
20 l5 ~in

by

their tools. -H:oweir-~'f:iJ,cl-t~cknbt-6~\


be .an enforcement
-- '
-'
- - s~1kl!-:to
-. --- -'

51.

,-,:-~2'-t-' -y,~,~-"

From the respondent's perspective, how~Ver, itmay well be said


t'-~ ,

,'L

,,

that the strike is being used by them --a:~_- a tool to compel the
petitioner to honour the judgment in Petition No. 3 of 2015.

28

52.

Section 76 of the Labour Relations Act provides as follows


concerning strikes:-

76.

53.

A persoh may participate in a strike or lock-out if:(a) the trade dispute that forms the subject of the strike
or lock-out concerns terms and conditions of
employDJ,;ent.

Furthe:ro:section 78(1) oLthe Labour R~latiotl.S'~Ctprovides:78 (1)' .~() pef~on ,shall.tak~.''~~l"~;;f'~ a strike or lock-out or in
any. f::ondu.'~t iti cQp#ifupla~t?J;ii{;.a strike or lock-out if -

~o~~~;~J~,~~~collec~ive

(a) an,- fu\\lt;


agreement binding
on that~,p~r$~n prohfblt$:~ st~~J[e orlo~k-out in respect of
the Issue; in di$pute~ . : ..' " .. .
>'

(c)

the partie$

'"';

~'

; ~:~

.h~ve ;a:ir~~a;;t~

refer the trade dispute to


Industriili,so~~t or arbitr~ti~n~.
:\~'
~
."~~~"'<,'"'~
k

-"

54.

'-~if<

~-:

',~

,_ --:r ~ :,,;:. >:.

,_;;;'
<

The dispute between the petitioner Jn~rtl:J.'~ .respondents


is no
'
~

doubt a

trade

_;.-,~ r~ ~'""

dispute hence it is qii~F~'''}~wful for

the

respondents to participate in a strike in regard thereof in order


.

to agitate for the implementation by

">"""

th~. respond~nt

of an award

which they deem concerns their membe:r.s.tettri~;~d


conditions
"
_. of service.

Further, neither Justice Nd:ri in His judgment in

Petition No. 3 of 2015 nor the Court of?APP,e~;.prohibited the


respondents from calling on their mem,q:e:rsto go on strike over
:L_

-:~~'

':<\

the pay dispute with the respondent as at Ist September, 2015.


Further still, the disputants herein namely the petitioner and
the respondents have not agreed to refer to the dispute over the
29

implementation of the judgment in Petition No. 3 of 2015 to this


Court in order to bar either of. them from engaging in any
industrial action as provided under section 78(1) of the Labour
What is before the Court is . a . con tested

Relations Act.

enforcement proceedings which in itself is a furtherance of the


agr~~ment

dispute between the parties and not an


Court arbitrates the
55.

that the

<:f~spute ..

From the fott~goipg,, the: ~~~urt;)~~~,~f"lhe v1ew that there is


absolutely nothing' WI-ori:g
,_:._

Relati~ns

Act

compel the
2015.

-.

a:Q,~';JMF~~:~~~t

in breach of the Labour


.
;to go on stnke to

~~-:
. :._.~.~~:~:~;~~>~~~-~~<4;~~1;:;~-~1/~ ~,~:~r~~y:
..
fofJhe'~responden,t's mymbers

. "' \

petiti9~;~r t9 hon:o\J;s~~~~~iJ.a~ent in Petition No. 3 of


~0urt ofj'*~~~~t"d,~clined t~ order a stay of
thet~aj.i(igfuent mc(Pet~ti~il. No. 3 of 2015, the

When the

execution of

respondents were left with the libeif.y't:t9';,~sg,any lawful means


recognized by the ConstitutiQn

and;i~b6#t"'f~Y:lations
;Z

agitate for what they deem as their


awarded by the Court in Petition Np.

'

';

Act to

., '

m~Il\~~t~~.0entitlement

as

of ;.~]J~L;;~~The appeal by

the petitioner is akin to any civil claim."~here ~~jgogment debtor


~-~-

'

..

' ,.; ~

\'

is in dilemma after failing to obtain a stay of~.exei~tion and must


grapple with the issue of whether to

settf~ the.qecretal sum and


.

'~

still prosecute the appeal or pay . an~; abatl.d'cDn the appeal


altogether.

30

56.

(e) Does the petitioner have the locus standi to bring the
petition on its behalf and that of the. school going children
in public scho.ol and the people of Kenya generally?

As observed earlier in this judgment, Mr. Obura for the


petitioner submitted regarding this issue that }he petition was
brought under articJe 22 and 258 of the;>.Qonstitution which
COil.fers on fhe pe.titi6ner the right t0 :biing the petition on behalf
of the children in p-ublic ~c,hool~><'IYlfhKiragu in support of Mr.
Obura's suhmissions' adife~~;1d\~~.;~~tiGle 237 of the Constitution
. . ..
.. . .. .. . .t'WJld~}~,,tf:?'~\"t
sets .out the. ml}ttions .,.of t ..!'
'titio(,l.~,F ~d article 249(1)

provides for .t~e

pi~mqtion o.~~.g

~~\ . -~

J~::::-.

. . :.tio~q]ism''by the petitioner

~-..

.}.,. ~~~:rt1\~~!i~~J~~~':,_:.J!?f:<~~
~ _:~.\~:~
and to this extent Counsel '~~S~t~~ri:that
the:P>?titioner
had the
;
.><" . . " , :,,.
y..

<~

locus standi to biiugthe petiti~n~ .


57.

Mr. Ahmednassir for the 1st respondent;:.q~~.}tp.e other hand


submitted that the petitioner. being a

creEl,t~~~/Qt article 237 of

the Constitution hence a body corp.ora,te


.

by~~f;x,l~
.

:~"{-t;:.>

..,.

of article 253

lacked the juridical persona to file cog~tittf:fipnal petitions.


According to Counsel, Bill of Rights are ngh.ts.'t,'P- persona and
the petitioner being a state organ hence

PMt

()f Government

cannot litigate Bill of Rights.

58.

The

petitioner

1s

established

under

237

of the

Constitution and has as one of its functions, to advise the


national government on matters relating to the teaching
31

profession. Under article 248 read together with article 249, the
petitioner as one of the Constitutional Commissions has as some
of its objects, the protection of the sovereighty of the people, and
promotion pfconstitutionalism.

Black's Law Dictionary gth

edition defines sovereign people as a political body consisting of


the collective number of citizens and qualifi~&J. electors who
possess th~ powers of sovereignty and 'ei~f~i~f them through
their

choseil,'.repres~,;~.1.:tativ~,~

It

furtlt:l~~,,Jefili~s sovereign power


<y-'

~---;i::

---

as the , power ,;tq, m$e, 'aJ:l.d egf~e;~ 1 \laws.


Dictionary

:edit'ttiri.~,,s.defitl~St'''h~~nstitutionalism
<,. .
:;

12th.

~" ,

_:

~ .~. , . ~ ~ ~f<Y~

/:~~,~':: ?~'::~:;~--~-~

, ... adhepence.
f~ a systefiq.qf;t~o
.

' .

Concise Oxford

',.

..4~~J.

'

~,

..

. .

'fu.t{5g~<'gQ~~nment.
. .

:~

""

. -~~0;-,~~:-:,~~;:,::;r:~;fr

.. ..' .

as

the

Applying

. . ~~

these legal ct~finiti6.p.s to the.~~' .. ,P;~~ri'it !llay lR.e said that under
~

~.- .

....~

i~-~.:. ~

....:~~ .~':~:;~::~~:~~*:~~:i:_:-;~;:~~~-.~:.y..:_, . ''


::j;:~j
article 249'of tne CGn'sti~uorri;~;:ttf:~g'i;petitionei:~~being one of the

5aS,

Constitutional Coili~is~io~s

p~wer
so far a~

protection of the
enforce laws in
mandate.

Further, the

a;~,,/6~~ of its objects, the

ped:~1e'~,~~:~enya to make and


falls within t~~~~~~~i;liq11,ers' specialized
petitioner has th~: ID:~~~te to promote
of the

adherence to the Constitution

by,per::>ons"W!i~~~~Jall
~<t-"""~"-' _;-.;-';c{

":

within its

Constitution in so far as falls in th~ ,,;,,p~tit~~ners areas of


~-:'

operation.

59.

Some of the petitioners core


article

237

of the

mandat~s,:as

Constitution

include

provided for under


recruitment

and

employment of registered teachers and exercise of disciplinary


control over them. The petitioner further has the duty to advise
32

the national government on matters relating to the teaching


profession.

60.

Under article 93(l)'nf the Constitution, every child has the right
among others to free and compulsory basic education.

The

teachers recruited by the petitioner provide this right to the


children 011 behalf of the ..petitioner in re;turri:'for salaries.
cap.not the(efore . be1~~.~e~i~d. that
<

<

," '

., ,; 'l

' '

'

in~~ef{~pl,lJing

its constitutional

". . ,

It

duties under. article"249r m.~~6petit!~h~t:Win from time to time be


confronted With

disput~~~~~~:ttr~~~~~J~~resently before the Court.


. '"

... .cL ...,,~~c:i'\~d;.(

To tb,.is extent article 237

n~;~liJ~.)fbg~ther'.. with
. <;:, ;, c:,

;.:.<-

-'~~

article 249(1)

clothes the petitio~er :with eP,oftgHiJ,aegal


authority to bring the
;--:/"-;... <;,-..," .
<

present petition on 'its behalf; tl'i~::qJl;iidfen


in public schools and
.
.
people of Kenyag~fi~;t~fy. Futthe.r,l,J.i):cler. artiele 22 proceedings
for enforcement of BiULof Rights
person whose rights

~~~~lJ:~<:htpU,ght

either by the

a.Ila fundamental ri~edo~ qre breached or


-:_

'

on his or her behalf by among others, a< \p~r:~~ acting in the


public interest. The definitions df ~person .{tpd~r article 260 of
the Constitution includes body of persons .wpi~tll.~r incorporated
or unincorporated.
<,_[

61.

The contention by Mr. Ahmednassirthat,WI organ, of state hence


.

;i'

the state cannot litigate on Bill of Right emai11s therefore novel


and grey.

33

62.

Having considered the foregoing issues as I have, the only


question that remains to be res9lved 1n this petition is what
would be the appropriate orders to make in this petition?
Having

reg~(:j.

to the heat the ongoing strike has, generated

among the protagonists deciding on the appropriate orders to


make becomes challenging to me as a Judge,,;and takes me
through venr anxious .mdm~nts and persoua~fr~fl~ction.

63.

h~~( .Stating

I have the petitioner on grp.e

-"t:~ l~J -~~--

- '"t

teachers

b~~k

to

44~s ~~~~}~~~~t

. lW~ded in ;P~t1t~pn No ... 3


been

that it wants the

i, '-:

of any of the amounts

::st~ b,~c~:us~ .the judgment has

appal~d Jrq:h and the'~i~~ .'t~s ~~ndi11g,iibd on the

have:j~~~~:~;;~ml1..~ir memS~rs

the respondents wfr0

unies1s3.;the~:' ~ward ,i~::,~etition No.


. implemented. In this S9enario, th;'ii:it~gt{ty a~ld
from class

''

'

'-

'-

't;"""~-,,

'\,;\

'o', \

~:.'_:;-:_.'-'-,

'""'

,, <

'

.'>

'

;<:!<

",

to stay away
3 of 20 15 is

'

'

other,

respect for any

order the Court may make becomes a dalip.fi~~lig,sk. Making an


order in favour of one paity against

m&.:~~~r

<

portends a

;_'-i_"'"---+:::>,

reputational risk to the Court as $} ai"biter g{;~h~ dispute. The


' .. :'Te.>}>'\4"'

Court will however not renege on :its cor1sit~~~ional duty to


interprete

the

interpretation.

law

and

make

orders

inf~ied

by

such

Respect for Court Orders. ,j ,:our sovere1gn

;sho~ld~:~regard him or
:of the ,fip~ople of Kenya

responsibility as a people and no one


herself bigger than the sovereign will".,

..

:"<>><1

encapsuled in our Constitution.

34

'v

64.

There is a sense in which it may be safely said that the current


teachers strike has transmogrified into political dispute in
respect of which the <Court should be very cautious before
throwing a legf11 fiat of judicial determination. It may be apt to
say at this point that our judicial institutions are meant to solve
legal disputes while political disputes should be left to our
politicalirtstitutions. Therefore while the Courtwill be making a
judicial

pronouncem~nt

th,~~ sta.t~r;(exeutive)

incumbent upon
-_

',

oh"tfhe displlte over teachers' pay it is

'

',:,

-~-_,"

and the legislature to

<

consider and reconsider~~;tilh.:i~~~~~~~~i{~'Stering wound that the issue


~.;;;:~~?~~: .. ~;~;{'; ,
.. of tea0'hers' pay' has bl~eome"; ;,~):~-~-:t2r<,' .
}
,

. .. ..

,_,

~".

.-

,,

-- ,

,..

::

::.:> \

;,

"',,

,.-~IT.{~

.~

',~ .~< < \

65.
><

"'

trustees of the sOv~reigh will oftlie p~ople of Kenya to resolve or


. at least mitigate the stalemate ovet:the. t~achers' pay.
.

The

judiciary has tirelessly and dutifully disohal;:g~d. and continues


~

>'

'

. ,, \\(:~~:. :..'d,. :<

to discharge its role in resolviirg the disput~~:~'i:ltrifthe


dispute be
.
"

dead, the Court as a surgeon canho.t. play

~~

. . ... :

tfl.~~ip~~blogist as well.
--

. . -- .

>.

Let the executive and legislature take the rol~ ot~~mortician and
tell Kenyans the cause of death of the

t~achers<~k_y dispute and


e'

recommend a decent burial if that be the ,;-:..case.


..

Blackmail,

cajoling and "can't pay, won't pay q.ttitud"~( only serve to


entrench positions and allow the dispU,te to rela.t>se into a fodder
for political opportunism.

35

66.

On the extreme end, the continuation of the strike is not good


for either of the protagonists. For the teachers it creates in them
the moral dilemma of leaving the' children whom they love and
sacrifice so. much
to teach, suffer while for TSC as an .institution,
:'":

'

the continuation of the strike makes it look insensitiveto the


wellbeing of the teachers and borders on abqig:ation of TSC's
constitt.ttiaJ;tal duty of managing
,.

'

national

6 7. The

teachers~ ~f'ili_~~'~n behalf of the

--

governmen~.

foregoin~ having. b~f?pt~~~ i;if~~f~ter

resolving purely legal

aspects of the petitiofi a.nJ::cdJij~s~~~f~gg th.at ~~e Petitioner had


asked

th~' Court ~~a~ alte~~~~~\j~O\take of~ers it may deem

fit in the

circumstance~; ~~~f~~b~iz:ing the'~~licate nature of

the dispute

aridwhat:~inf~or~end.~~fo;'tn.e.#\lJure of our children in

public schools, and guiSfed by the pigY;i~i~~,ofarticle 3(1) of the


Constitution that binds us.as a people.t~:\:~~:sr.?ect, uphold and
:

defend the Constitution, appreciating the

. .

'

''

caltli).~~.ss

the parties especially the respondents have

and respect

dis~t~yed in awaiting
---<_,,::_:--y,~~.>l;'il

the determination of this dispute andd~oing ~~.~~st I can in the


circumstances, I HEREBY ORDER AS

toL.0\:V~~.
;;._

'

A. In the interest of the children in the ptibUc schools and

the rights under article 53(l)(c) df.the Cpnstitution, the


respondents are hereby ordered to suspend for 90 days,
the strike commenced on 1st September, 2015 with

36

consequence that the respondents' members do resume


duties immediately.
B. The petitioner and the respondents within 30 days of this
Judgment, with help of the Cabinet Secretary for the time
neut~;al

being in charge of Labour, appoint a


agreeab~e

and mutually

"'

conciliator\., .or conciliatio.n, committee


' f-

-,

'

" '

and

.~ngage ~:q concilJ~tiori.',t,~;: good> r~Jth limited to exploring


viable

m~d:a,Jltie~ :of' ill1~1ell\E}~tin~ the

award in Petition

No. 5 of 201,5' be'at,i.!\g: 'JNi,;~D:iind Government's fiscal

.P9!icies ~nd"b~dgetaeyi~y~J~i}'

C.

not~ Ji;~{~;Ki~e 6r in a.J~


~t~iil~t : the:r:~~ t~~poil~~:qts'

The petitioner will


adverse

step

participating in the strike

way take any


members

calledaj11~~ sl~p~ember,

for

2015 by

the respondents and this includes pa~IIJ.eftt~.,tqf full salaries


and allowances without any deductiori.~~:jhatsoever on
account

of

the

period

tiU~L

respond~:q.~s'
-:: ,-.

-:.

-~,~.~,-:,

members

participated in the strike called by th.e respd'~:dents.


'.

D.

";<,

Either party shall upon the expiry c,f tb.@L90 day period
stated in A and failure to conciliate

tJte

dispute as stated in

B above, be at liberty to declare a trad~ dispq~e and exercise


any of their rights as provided under article 41 of the
Constitution as read together with section 76 of the Labour
Relations Act.
37

E.

Each party shall bear their own costs.

F.

It is so ordered

. .

. t.c

...

Dated at Nair<JJ;>i this ..... ~~ ........... day of-~ 2015

,
. . .

Abirbd~ N@J$0ii;
~i~~~d~e ' .

"\:

Dehvere,d th1s ............... :.:,~; ..

In the

da~:~

.' , :/

rfl"''~~-

presenc~,t>f:..;
r

........... " .............. ' ...


.

"~-

.::.,._-..
;>

''
I

''

:"

'

...... , ................................... ; ................ ~.; ~J,~~~}.;.~fO!i the Respondent.


~"'8-" .;,

J.,.

--'

.;

Abu

38