Kenya Union of Employees of Polytechnics, Colleges and Allied Institutions (KUEPCAI) v Moi Teaching Referral Hospital [2016] KEELRC 782 (KLR)

REPUBLIC  OF KENYA

EMPLOYMENT & LABOUR RELATIONS  COURT OF KENYA

AT KERICHO

CAUSE  NO. 8 OF 2016

(Before D. K. N. Marete)

KENYA UNION  OF  EMPLOYEES OF  POLYTECHNICS, COLLEGESAND

ALLIED INSTITUTIONS (KUEPCAI)....................................................CLAIMANTS

VERSUS

MOI TEACHING REFERRAL HOSPITAL...........................................RESPONDENT

RULING

This is a Preliminary Objection dated 25th May, 2016.  It comes out as follows;

TAKE  NOTICE that at  the   hearing of  the Claimant claim dated  12thJanuary,  2016, Counselfor the Respondent   will  contend  as  a preliminary point of law, that the  claimants claim is hopelessly misconceived, frivolous, and totally devoid of merit for the  reason that Moi teaching and referral hospital is neither a polytechnic nor a college and that the  claimant is not  the  appropriate union for the  respondents employees.

WHICH OBJECTIONisgrounded uponthe  Kenya Gazette Supplement no.  34  of  12thJune, 1998(legislativesupplement no.  25)  Legal  notice no.  78.  (The  Moi/Teaching and Referral Hospital Board Order, 1998), and the  Respondent's statement of response filed on 15thApril,  2016.

The claimant in  response to the preliminary objection seeks to rely on Article 36 (1) and (2) of the Constitution of Kenya, 2010 that  provides for the right to association as hereunder;

“(1)Every  person  hasthe   right   to   freedom  of   association,  which includes the   right   to  form, join  or  participate in  the   activities of  an association of any kind.

(2) A person shall not  be compelled to join an  association of any kind. (3) ............................”

This is  coupled by  Article 41  (1)  and (2)  of  the Constitution of  Kenya, 2010  as follows;

“LabourRelations.

41  (1) Every person has the  right  to fair labour practices

(2) Every worker has the  right  to

(a) to fair remuneration;

(b) to reasonable working conditions;

(c) to form, join or participate in the  activities and programmes of a trade union; and

(d) to go on strike

It  is   the  claimant’s   further   submission  that  the  respondents  powers  and functions are provided for in  legal Notice No. 78  – The Moi Teaching and Referral Hospital Order as follows;

9. That, powers and functions of the  Board are  explicitly enumerated at paragraph 5 (1) to (3)  and  which  among others is to mitigate educational activities at  the  Moi Teaching and  Referral Hospital that states inter  alia:­

“(1) ........... (2) ............

(3) (c) promote the  general welfare of the  patients, trainees and staff of the  hospital

(d)Promote medical training and  provide technical adviceon  health research, manning and development;

10.  That, further it is important to be  well informed of the  functions of the  institution at paragraph 6 (b) which provides for among others inter alia:­

“(b) to provide facilities for medical education for Moi University and for research    either   directly   or    through    other   co­operating   health institutions;

(c) to provide facilities for educations and training in nursing and other health and allied professions;”

The claimant therefore faults the preliminary  objection for being mischievous  and lacking in merit and prays that it be  dismissed with costs.

The respondent/objector deems and submits that the claim is  hopelessly misconceived, frivolous  and  devoid for the  reason  that  the  claimant  is  not the appropriate union for the respondent’s  employees.  She further  submits that the claimant is  acting on the mistaken belief that  by  virtue of Article III (A) Section 1 (a) (i) of its Constitution the respondent’s employees are potential members.  This is not true as the claimant constitution defines its members to include;

(a) Staff of  employees of  tertiary (polytechnics  and colleges),  schools  and educational centers.

(a)  (i)   Further defines polytechnics as including  public, provisional, district, divisional, village, youth, teaching and referral training institutes, education and YMCA/YWCA centers.

This  objection  fails  for  lack  of  conformity  with the  principles laid out  in   the authority of  Mukhisa Biscuit  Company Limited Verses Westend Distributors Limited  (1969) EA 696at page 701 on the sanctity of preliminary objections as follows;

“A preliminary objectionis in the  nature of what used to be a demure. It raises a pure point of law which if argued on the  assumption that all the facts pleaded by the  other side  are  correct.  It cannot be  raised if any fact  has to  be  ascertained or if what is sought is the exercise of judicial discretion. The  improper raising of points by way of Preliminary Objection does  nothing  but unnecessary increase costs and occasion confuse the  issues.  This improper practice must stop.”

This would call for an interrogation of further  data to bring out the actual status of the claimant as it relates to representation of the respondents employees. I am therefore inclined to dismiss the preliminary objection with costs to the claimant.

Delivered, dated and signed this 19th  day of July 2016.

Appearances

D.K.NjagiMarete

JUDGE

1.  Mr. Agura for the union.

2.  Mr. Kirima for the respondent/objector.