https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1539

Kenya National Union of Nurses and Midwives v CS, Ministry of Labour and Social Protection & another (Judicial Review Application E060 of 2025) [2026] KEELRC 1539 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1539 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Application E060 of 2025 JW Keli, J June 5, 2026 IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW FOR ORDERS OF CERTIORARI, PROHIBITION, MANDAMUS AND DECLARATION AND IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 22, 23, 41, 47, 73, 159(2)(b) & (d), 162(2)(a), 165(6) AND 232 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF SECTIONS 4, 5, 6, 7, 8, 9, 10, 11, AND 12 OF THE FAIR ADMINISTRATIVE ACTION ACT, 2015 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION (JUDICIAL REVIEW PROCEDURE) RULES, 2024 AND IN THE MATTER OF SECTION 49 OF THE LABOUR RELATIONS ACT, 2007 AND IN THE MATTER OF THE CABINET SECRETARY, MINISTRY OF LABOUR AND SOCIAL PROTECTION’S STATUTORY DUTY TO ISSUE A GAZETTE NOTICE AUTHORISING DEDUCTION OF AGENCY FEES UNDER SECTION 49(1) LABOUR RELATIONS ACT Between Kenya National Union of Nurses and Midwives Applicant and CS, Ministry of Labour and Social Protection Respondent and CEO, Kenyatta National Hospital Interested Party Judgment 1.The Exparte Applicant, a union registered within the Republic of Kenya in the sector of health focused on nurses and midwives filed a judicial review application by way of notice of motion dated 13th October 2025 against the respondent and joined the Interested Party. The exparte applicant sought the following orders-a.An order of mandamus be and is hereby issued compelling the Cabinet Secretary, Ministry of Labour and Social Protection, to consider, determine and issue a Gazette Notice authorising deduction and remittance of agency fees from all unionisable nurses benefiting from the Registered Collective Bargaining Agreement (RCA No. 21 of 2025) stemming from the Applicant’s formal request dated 8th July 2025 made pursuant to Section 49(1) and (2) of the Labour Relations Act, 2007.b.An order of mandamus be and is hereby issued compelling the CEO Kenyatta National Hospital upon publication of the Gazette Notice under section 49(1) Labour Relations Act, directing the Interested Party to compute, deduct and remit agency fees within 30 days per section 49(3), including retrospective deductions consistent with section 49(6).c.An order of prohibition do issue directed to the Cabinet Secretary, Ministry of Labour and Social Protection, whether by himself, officers, or agents, prohibiting them from relying on or invoking any unlawful or extraneous considerations, including the absence of regulations or internal policy reviews, as a basis to delay, withhold, or frustrate the issuance of a Gazette Notice under section 49(1) of the Labour Relations Act, and from taking or continuing any action that undermines or suspends the lawful execution of the said statutory duty.d.An order of declaration that the Respondent’s continued failure, neglect, and/or refusal to issue the Gazette Notice constitutes a breach of the Applicant’s constitutional rights under 3 Articles 10, 41(2)(c), 47(1), 50(1) and 232(1)(c) of the Constitution, and a violation of Section 6(2) of the Fair Administrative Action Act, 2015.e.Any or further Orders and Directions that this Honourable Court considers appropriate and just to grant herein. 6. The costs of this application be provided for. Grounds of the application 2.That the Respondent has failed to perform a mandatory statutory duty imposed under Section 49(1) of the Labour Relations Act, 2007, by neglecting to issue a Gazette Notice authorising the deduction and remittance of agency fees, despite the Applicant and the Interested Party having submitted a compliant joint request dated 8th July 2025 with all statutory documents pursuant to Section 49(2). This omission constitutes an unlawful abdication of statutory duty and undermines the rule of law. 3.That the failure to act further violates Article 47 of the Constitution and Sections 4 and 6 of the Fair Administrative Action Act, 2015, which require administrative action to be lawful, reasonable, expeditious, and procedurally fair. The Respondent’s prolonged and unexplained inaction amounts to constructive refusal, offending the principles of accountability and responsiveness under Article 232(1)(c) of the Constitution. 4.That the Respondent’s omission equally infringes the Applicant’s constitutional right to collective bargaining under Article 41(2)(c) of the Constitution and ILO Convention No. 98, as it undermines the effective implementation of the Registered Collective Bargaining Agreement (RCA No. 21 of 2025) and frustrates the Applicant’s ability to represent both members and non-members. 5.That the Respondent has acted discriminatorily by gazetting similar agency fee requests from other health-sector unions while withholding the Applicant’s request without justification. Such unequal treatment contravenes Articles 27(1), (2) and (4) of the Constitution and violates the principles of fairness and equality under Article 10. 6.That the continued omission breaches the constitutional principles of integrity, transparency, and accountability under Article 232(1)(c), (d) and (f) of the Constitution, as public officers are bound to act impartially and expeditiously. The Respondent’s inaction frustrates the proper administration of labour relations and the statutory objectives of Section 49 of the Labour Relations Act. 7.That having met all statutory requirements, the Applicant had a legitimate expectation that the Gazette Notice would issue within a reasonable period. The Respondent’s failure to fulfil this expectation without lawful reason is arbitrary and contrary to Article 47 of the Constitution and Section 7(2)(m) of the Fair Administrative Action Act. 8.That the Applicant has no effective alternative remedy since the Respondent, being the defaulting administrative authority, cannot review its own omission. The internal mechanisms under Section 9(4) of the Fair Administrative Action Act and Rule 56(5)(b) of the ELRC (Procedure) Rules 2024 are ineffective, thus justifying this Court’s supervisory intervention under Articles 23(3)(f) and 162(2)(a) of the Constitution. 9.That the continuing omission has caused financial prejudice and constitutional injury to the Applicant, denying it agency fees exceeding KShs. 1,954,000 and impairing its ability to discharge its statutory mandate. The omission perpetuates administrative injustice and undermines the constitutional principles of fair labour practices and justice under Articles 10 and 159(2)(b) of the Constitution. 10.The respondent raised the issue of subjudice, stating the cause of action was similar to the action case in the Nairobi claim No. E275 OF 2025 with the parties as follows-‘Republic of KenyaEmployment and Labour Relations Court at Nairobi.Cause No. E275 of 2025Kenya National Union of Nurses and Midwives-versusCabinet Secretary for Ministry of Labour and Social Protection. ..respondentChief Executive Officer Kenyatta National Hospital – Interested Party’ 11.In the said suit, Nairobi claim No. E275 of 2025, the Exparte Applicant /claimant sought for the following orders-‘That, this Honorable Court be pleased to issue an order directing the Respondent to issue a Gazette Notice requiring the Interested Party to deduct a sum of Ksh 1000 from the wages of all the Nurses who are employees of Interested Party and are not members of the Union who are benefiting from the Collective Bargaining Agreement registered in Court on 6th day of August, 2024 and bearing Court Registration RCA No.279 of 2024.That, this Honorable Court to issue a deterrent order directing the Respondent to pay a sum of Ksh 1,970,000, 000 being the total amount of the loss that the Claimant has incurred due to lack of deduction of Agency fee owing to refusal/failure by the Respondent to process the application by the Claimant for Gazettement of Agency fee for Interested Party.Any other relief that the Honorable Court may deem fit to meet the ends of justice.Cost of the suit to be borne by the Respondent’’ 12.The respondent has pleaded that the instant suit is subjudice to the above suit as they seek the same orders. 13.I did agree with the respondent that the cause of action is similar, and so is the prayer. The cases seek to enforce the agency fee deduction. The word subjudice is defined in Black's Law Dictionary (Garner, 10th Ed) as follows: ‘under a judge’, before the court or judge for determination. That is the exact position here. The cause of action is before Justice Nzei in Nairobi Cause No. E278 of 2025 and the case is against the same respondent. 14.The court, having reviewed the application, finds the cause of action is before another judge. I find there is a risk that the court will issue contradictory decisions. The court, for the foregoing reasons, declined to determine this matter as the other suit was filed earlier in April 2025 and the instant one in October 2025. The court holds the suit in abeyance to await the outcome of C278 of 2025, which will apply in this suit. Mention 13th July 2026 to confirm status and for further directions. 15.It is so ordered DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 5th DAY OF JUNE, 2026.JEMIMAH KELI,JUDGE.In the Presence of:Court Assistant: OtienoApplicant – Suguti standing in for RuteereRespondent: Olaibon h/b Akuno