https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1386

County Government of Machakos v Kenya Medical Practitioners Pharmacists and Dentists Union; County Secretary and Head of Public Service County Government of Machakos & 8 others (Contemnor) (Petition E163 of 2024) [2026] KEELRC 1386 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1386 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E163 of 2024 JW Keli, J May 15, 2026 Between County Government of Machakos Petitioner and Kenya Medical Practitioners Pharmacists and Dentists Union Respondent and County Secretary and Head of Public Service County Government of Machakos Contemnor Chairperson Machakos County Public Service Board Contemnor Chief Executive Officer Machakos County Public Service Board Contemnor County Executive Committee Member Contemnor Finance County Government of Machakos Contemnor county Executive Committee Member Health Services County Government oof Machakos Contemnor County Executive Committee Member Administration & Public Service County Government of Machakos Contemnor Chief Officer Administration & Public Service County Government of Machakos Contemnor Chief Officer Health Services County Government of Machakos Contemnor Ruling 1.The parties herein executed a return to Notice of Motion formula from the industrial action under Notice dated 24th September 2024. The document was executed by all the parties on the 11th December 2024. 2.The court (Justice Ongaya) adopted the document vide order of 11th December 2024. Following the order the petition before the court was compromised. 3.The Petitioner vide application has further approached the court vide Notice of Motion application dated 13th November 2025 seeking for the following orders:-1.The Application herewith be certified as urgent, service of the same be dispensed with in the first instance and the same be heard ex-parte.2.The Contemnors cited herein be ordered to appear before this court and show cause why they should not be committed to civil jail for such term as the court may deem just for the blatant disobedience of this Honourable Court's orders of 11th December 2024 adopting the RTWF dated 11th December 2024.3.The Contemnors cited herein jointly and severally be and are hereby denied further audience by this Honourable Court save for showing cause why they should not be committed to civil jail for such term as the court may deem just for the blatant disobedience of this Honourable Court's orders of 11th December 2024 adopting the RTWF dated 11th December 2024.4.This Honourable court be pleased to issue any further orders and directions as it may deem fit in the interest of justice.5.The cost of the application be in the cause. 4.The grounds were:1.A Return To Work Formula was executed between the parties herein on 11th December 2024 by Dr. Muya Ndambuki being the County Secretary and Head of Public Service, Albanus Mutisya being the Chair Machakos County Public Service Board and Justus Kasivu being the County Executive Committee Member Health & Medical Services for the Petitioner and adopted on the same day by the Court.2.Pursuant to Agreement I, II and III of the RTWF, the Petitioner committed to start the process of promotions by 28th April 2025 for 106 doctors who were due. Further, pursuant to Part III, 39 doctors practicing as specialists were to be placed in the right minimum JG Q.3.Pursuant to Agreement IV of the RTWF, the Petitioner committed to remit statutory and non-statutory deduction on or before the 5th of every month.4.Pursuant to Agreement V of the RTWF, the Petitioner committed to source for comprehensive medical cover for all doctors in collaboration with the National Government (for Seconded Officers).5.In contravention of Agreement IV of the RTWF, the Petitioner persistently delays in remittance of statutory deductions including SHA premiums which causes many doctors to lose medical access, as the cover lapses every 9th of every month if unpaid, putting the Applicant's members at grave risk.6.In contravention of Agreement V of the RTWF, Following the transition from NHIF to SHA, the Applicant's members were moved to an inferior medical cover that severely limits access to healthcare services. This contravenes the CBA provisions, which guaranteed that no doctor shall be placed on a cover inferior to what they previously enjoyed.7.The Contemnors herein either jointly and or severally have breached the terms of the RTWF adopted as an order of the Court inter-alia in the following manner:i.Persistent delay in salary disbursements.ii.Delayed promotions and denial of career progression opportunities.iii.Delayed remittance of statutory deductions particularly SHA thereby effectively denying the Union's members medical covers.iv.There is further a lack of consistent medical cover for doctors employed by Machakos County Public Service.8.It is just, equitable and in the interest of justice that this Honourable Court acts swiftly and decisively in face of such wilful contempt; and to uphold the Court's integrity and sanctity of Court processes and secure that the RTWF adopted by Honourable Justice Byram Ongaya was not in vain.9.The parties herein are engaged in provision of essential services under Section 74 (c) of the Labour Relations Act hence the referral of this matter to court under certificate of urgency. 5.The application was opposed by the Respondent vide replying affidavit sworn by Justus Kasivu on the 27th December 2025 where they denied being in contempt and annexed progress report in implementation as the agreement signed by the parties. The Respondent further asserted ……… 6.The court lacked jurisdiction for want of compliance with the provision of section 5 of the Judicature Act Decision 7.The application was canvassed by way of written submission. The court found that it was, in the first instance, to satisfy the question of jurisdiction before further steps. 8.The respondent submitted the process of commencing contempt proceedings under the Judicature Act was reproduced in the decision of the Court of Appeal in Christine Wangari Gachaga vs. Elizabeth Wangi & Evans & 11 others (2014) eKLR cited in Nedim Mohamed Ibrahim v. Abdul Karim Swaleh Muhsin & 3 others KEHC 4028 (KLR) to effect that in application for contempt proceedings, the applicant must first seek leave to bring contempt of court proceedings prior to the substantive committee application. In the decision the High Court held as follows- ‘In the end, the court concluded thus: -“…The only consistent feature in the decided cases we have read is the requirement that leave to bring contempt of court proceedings must be obtained prior to the bringing of the substantive committal application. From the provisions of Order 52 RSC, it is clear that such leave in the High Court of Justice in England would be obtained on an application to a judge in chambers…” 9.This being the case, I find that the requirement for leave prior to commencing contempt proceedings is not an idle one. I am satisfied that the Plaintiff has complied with the law on contempt. I thus find that the application is properly before court. 10.Having found as above, the Plaintiff is seeking for leave to commence contempt proceedings against the individuals named. At this juncture, I need not discuss the issue of whether any party is in contempt since permission to proceed must first be granted in order to fully hear the contempt application as decreed under Part 81.3 (6) and (7) of the English Civil Procedure Rules (Amendment No.3), 2020.’ I was persuaded with the position. I upheld the decision to apply in the instant application. 11.The instant application was filed without seeking leave and is thus incompetent. The court lacks jurisdiction to proceed as leave was not sought. 12.The application is struck out on the basis of incompetence with costs to the Respondent. 13.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.In the presence of:C/A OtienoThe Exparte Applicant- WashikaRespondent – Ochieng