https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1943

Kenya Union of Clinical Officers v Baringo County Public Service Board & 50 others (Judicial Review Application E027 & E057 of 2025 (Consolidated)) [2026] KEELRC 1943 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1943 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review Application E027 & E057 of 2025 (Consolidated) M Mbarũ, J July 9, 2026 Between Kenya Union of Clinical Officers Applicant and Baringo County Public Service Board 1st Respondent Bomet County Public Service Board 2nd Respondent Bungoma County Public Service Board 3rd Respondent Busia County Public Service Board 4th Respondent Elgeyo Marakwet County Public Service Board 5th Respondent Embu County Public Service Board 6th Respondent Garissa County Public Service Board 7th Respondent Homa Bay County Public Service Board 8th Respondent Isiolo County Public Service Board 9th Respondent Kajiado County Public Service Board 10th Respondent Kakamega County Public Service Board 11th Respondent Kericho County Public Service Board 12th Respondent Kiambu County Public Service Board 13th Respondent Kilifi County Public Service Board 14th Respondent Kirinyaga County Public Service Board 15th Respondent Kisii County Public Service Board 16th Respondent Kisumu County Public Service Board 17th Respondent Kitui County Public Service Board 18th Respondent Kwale County Public Service Board 19th Respondent Laikipia County Public Service Board 20th Respondent Lamu County Public Service Board 21st Respondent Machakos County Public Service Board 22nd Respondent Makueni County Public Service Board 23rd Respondent Mandera County Public Service Board 24th Respondent Meru County Public Service Board 25th Respondent Migori County Public Service Board 26th Respondent Marsabit County Public Service Board 27th Respondent Mombasa County Public Service Board 28th Respondent Muranga County Public Service Board 29th Respondent Nairobi County Public Service Board 30th Respondent Nakuru County Public Service Board 31st Respondent Nandi County Public Service Board 32nd Respondent Narok County Public Service Board 33rd Respondent Nyamira County Public Service Board 34th Respondent Nyandarua County Public Service Board 35th Respondent Nyeri County Public Service Board 36th Respondent Samburu County Public Service Board 37th Respondent Siaya County Public Service Board 38th Respondent Taita Taveta County Public Service Board 39th Respondent Tana River County Public Service Board 40th Respondent Tharaka Nithi County Public Service Board 41st Respondent Trans Nzoia County Public Service Board 42nd Respondent Turkana County Public Service Board 43rd Respondent Uasin Gishu County Public Service Board 44th Respondent Vihiga County Public Service Board 45th Respondent Wajir County Public Service Board 46th Respondent West Pokot CountyPublic Service Board 47th Respondent and Public Service Commission (k 1st Interested Party Ministry Of Health 2nd Interested Party The Council Of Governors 3rd Interested Party and Mary Mwiti Contemnor Ruling 1.The ruling relates to an application filed by the applicant and dated 19 February 2026. The application is premised under the provisions of Article 159(2) (d) of the Constitution, Section 5 of the Judicature Act, Sections 1A, 1B, and 3A of the Civil Procedure Act, and Order 50 Rule 1 of the Civil Procedure Rules 2010. The applicant is seeking orders:1.Spent.2.The court be pleased to declare and hold that the 3rd Interested Party and Mary Mwiti, being well aware of the Judgment and Orders of the Court given on 17 December 2025, have disobeyed those orders and hence are in civil contempt of court.3.The Court sanction the Contemnors herein as it may deem fit and appropriate, including committal to civil jail for a period of six months or each to pay the sum of Ksh. 200,000 or both.4.The Contemnors herein are denied audience by this Court until they purge the contempt of the court which has impeded and continues to impede the course of justice for the Applicant and its members.5.The costs of this application be borne personally, jointly and severally by the Contemnors herein, on full indemnity basis. 2.The Supporting Affidavit of George Gibore supports the application, the general secretary of the applicant, who avers that the dignity and authority of the Court are under threat by the Respondents, who have willfully and without lawful excuse disobeyed and continue to disobey the orders of 17 December 2025 by inciting the Respondents and other parties to these proceedings not to comply with the Judgment of this Court. The Contemnor, Mary Mwiti, in her capacity as the Chief Executive Officer (CEO) of the 3rd Interested Party, has, without lawful or justifiable authority, defied the orders of 17 December 2025 by directing various county departments not to implement this Court's decision. 3.Gibore avers that, in the Contemnor's letter dated 29 December 2025, she asserts that implementing the Judgment is not mandatory, and therefore directs the parties, together with the other county departments, not to comply with the orders of this court. This directive is in contravention of the judgment and detrimental to the Applicant and its members. 4.In the said Judgment, the final orders were;...In conclusion judgment is hereby entered for the applicant and the two judicial review applications now determined with orders as follows:i.The order of Certiorari hereby issued to remove into this Honourable Court and quash the resolution by the Council of Governors ostensibly reached during the meeting of 2nd September 2025 and thereby effectively restraining the Public Service Commission from implementing the resolutions of the Council of Governors as contained in the letter Ref. COG/7/2/VOL.3 (71) dated 3rd September, 2025.ii.The order of CERTIORARI hereby issued to remove into the Honourable Court and quash the decision, directives or resolutions issued by the Public Service Commission or the Council of Governors withdrawing and suspending all Career Guidelines for Various Health Cadres developed or approved by the Commission, and as particularly conveyed by and flowing from the letter Ref. COG/7/2/VOL.3 (71) dated 3rd September 2025 issued for the Council of Governors, or any like letter... 5.Gibore avers that it is unlawful for the 3rd Interested Party, through its representative, Mary Mwiti, to issue further directives regarding the approved career guidelines, an issue already determined by the court. The 3rd Interested Party, through the contemnor, despite being well aware of the judgment, has willfully and deliberately disobeyed the same and, in turn, has incited other county departments not to adhere to the decision of this court but to continue operating in line with the previous schemes and to totally ignore the current career guidelines as approved before this court. 6.These illegal actions by the contemnor are highly prejudicial to the Applicant and its members, as they incite the Respondents and other county departments to refrain from implementing the guidelines that have already been approved. Benefits are already being enjoyed by some Respondents in counties where these guidelines have already been adopted and agreements signed, such as the Return to Work Formula (RTWF), as found in ELRC Petition No. E005 of 2024 at Machakos. 7.The 3rd Interested Party, through the contemnor, will continue its illegal and unlawful disobedience to the court orders unless the Court intervenes and prohibits the contemnor from such actions. The Contemnor's willful acts of contempt and disregard for the Court's authority and orders have continued to prejudice and destroy the Applicant members' employment and, as such, will continue to be decimated by the uncontrolled, malicious, and wanton continuing acts of the Contemnor herein. 8.In the interest of justice, and in exercise of the court's inherent powers to uphold its dignity, safeguard the sanctity of its orders, and grant the orders sought. Unless the Application is allowed and the orders sought granted, the acts of contempt complained of shall persist. The dignity and authority of this Court shall continue to be undermined, and the entire proceedings shall be prejudiced to the detriment of the Applicant and its members.There is no reply from the respondents.In reply, the 1st interested party opted not to take sides. 9.In reply, the 3rd interested party filed the Replying Affidavit of Mary Mwiti, the CEO, and averred that the 3rd interested party comprises 47 County Governments on matters of common interest regarding the implementation of devolution under the Intergovernmental Relations Act. 10.On 17 December 2025, the court delivered judgment herein, and part of the findings were the recognition that in formulating policies by way of guidelines, the Ministry of Health and the Public Service Commission (PSC) were alert to the fact that they played a parallel human resource function at the national level and county levels of government. Thus, when implemented, the guidelines become operational on the date the PSC approves them, as well as for the County Public Service Boards. 11.Thus, in the final orders of the court at Order (a) and (c), the court held that the PSC did not make it mandatory for County Governments to implement the guidelines, but this was possible based on approval by the respective County Public Service Board. 12.Mwiti avers that the court also held that individual County Government Service Boards may apply the guidelines. 13.The 3rd interested party thus addressed itself to the judgment and, pursuant to its mandate to the 47 county governments, sent a copy of the judgment by letter dated 29 December 2025. The letter reflected the court's findings and advised that County Governments are not obligated to implement the career guidelines, but that implementation is optional and contingent on approval by the respective County Public Service Boards. This was not a bar but a condition upon the approved guidelines. 14.Mwiti avers that the letters of 3 September 2025 remain quashed by the court following the judgment of 17 December 2025. There is no evidence that the 3rd interested party is acting on the letter since. There is no contempt as alleged. 15.The applicant filed a Supplementary Affidavit of George Gisore, who avers that the judgment of 17 December 2025 quashed the letter dated 2 September 2025 and the PSC's directions to the 3rd interested party regarding the application of the guidelines. The judgment is binding on the 3rd interested party. Thus, the letter dated 29 December 2025 is not merely a communication of the judgment and amounts to a directive inciting non-compliance, thereby constituting contempt of court. 16.The 3rd interested party submitted that the applicant seeks to cite the CEO of the 3rd interested party for contempt of court. The application is that the 3rd interested party officer has willfully, without lawful authority, disobeyed and continues to disobey the court orders issued on 17 December 2025. 17.The applicant submitted that on 17 December 2025, the court delivered judgment in ELRC Judicial Review Application No. E027 of 2025 consolidated with ELRC Judicial Review Application No. E057 of 2025. The court held:“… In formulating policies through guidelines, the Ministry and the Commission were aware that the Commission and the County Public Service Boards performed parallel human resource functions at the national and county levels of government, respectively. Thus, on implementation, the guidelines stated that, “these Career Guidelines will become operational with effect from the date of approval by the Public Service Commission/County Public Service Boards and shall supersede any other existing Guidelines.The court thus ordered as follows:… while making that finding, it has been shown for the applicant that by approving the resolutions, the Commission did not make it mandatory for the County Governments to implement ..." 18.Under its powers under section 20 of the Intergovernmental Relations Act, the 3rd interested party, through the CEO, issued an advisory to the counties in a letter dated 29 December 2025. The letter indicated that the court's findings to the County Governments are that they are not obligated to implement the career guidelines, but that such implementation is optional and contingent upon approval by the respective County Public Service Boards. The letter did not impose an absolute bar but rather a conditional one, contingent on whether the guidelines were approved. 19.The essence of the applicant's complaint is that the CEO advised that the court's orders were not mandatory for County Governments, but that implementation was optional and contingent on approval by the respective county public service boards. The letter advised the County Governments to adhere to existing schemes of service until such a time as they were reviewed in accordance with the relevant constitutional and statutory provisions. 20.The 3rd interested party thus submitted that the letter from the CEO is not contemptuous of the court and contrary to the orders issued on 17 December 2025. Clause 1.14 of the Career Guidelines and Article 234(3) of the Constitution exclude the functions of the 1st interested party from certain offices in the public service, including offices in the service of County Governments. The challenged letter of 29 December 2025 captures verbatim the findings of the court and provides context for the same. 21.The elements necessary for alleged contempt have not been demonstrated, as held in Sheila Cassat Issenberg & another v Anthony Machatha Kinyanjui, HCCC Civil Suit No. 19 of 2020, that contempt of court in its nature is like criminal proceedings; therefore, proof of a case against a contemnor is higher than that of a balance of probabilities. The functions of the PSC under Article 234 of the Constitution do not apply to County Governments' public service. 22.There is no breach of the court orders on 17 December 2025 as alleged. The orders sought against the officer of the 3rd interested party are untenable and should be dismissed with costs. Determination 23.The applicant is seeking to cite the CEO of the 3rd interested party for contempt of court. The application is that the 3rd interested party officer has willfully, without lawful authority, disobeyed and continues to disobey the court orders issued on 17 December 2025. 24.The reference given to the alleged contempt of court is the 3rd interested party letter dated 29 December 2025. Ms Mwiti, the CEO, admitted to issuing this letter. According to her, it quoted the judgment of 17 December 2025 verbatim and provided context on the orders sought and the matters addressed by the court. 25.The final orders in the judgment delivered on 17 December 2025 were: 26.In conclusion judgment is hereby entered for the applicant and the two judicial review applications now determined with orders as follows:1.The order of Certiorari hereby issued to remove into this Honourable Court and quash the resolution by the Council of Governors ostensibly reached during the meeting of 2nd September 2025 and thereby effectively restraining the Public Service Commission from implementing the resolutions of the Council of Governors as contained in the letter Ref. COG/7/2/VOL.3 (71) dated 3rd September, 2025.2.The order of Certiorari hereby issued to remove into the Honourable Court and quash the decision, directives or resolutions issued by the Public Service Commission or the Council of Governors withdrawing and suspending all Career Guidelines for Various Health Cadres developed or approved by the Commission, and as particularly conveyed by and flowing from the letter Ref. COG/7/2/VOL.3 (71) dated 3rd September 2025 issued for the Council of Governors, or any like letter. 27.These orders cannot be read in isolation. There is a detailed analysis that concludes the resolution in the meeting on 2 September 2025 was quashed. The PSC was thus restrained from implementing the quashed resolution contained in the 3rd interested party letter dated 3 September 2025. 28.Additionally, the court quashed the decision, directives/resolutions by the PSC, and the 3rd interested party withdrawing and suspending all Career Guidelines for Various Health Cadres developed or approved by the Commission, as particularly conveyed by and flowing from the letter Ref. COG/7/2/VOL.3 (71) dated 3rd September 2025 issued for the Council of Governors, or any like letter. 29.The parties returned to the position subsisting before the 3rd interested party meeting held on 2 September 2025, as communicated in its letter dated 3 September 2025. 30.Following the judgment herein, the 3rd interested party CEO issued a letter dated 29 December 2025 directed to County Executive Committee Members for Health and the County Executive Committee Members for Public Service. 31.In the CEO’s letter, the first paragraph acknowledged the PSC letters dated 9 December 2025 and 2 May 2025. The second paragraph addressed the PSC clarification on the Career Guidelines issued in 2024 and 2025, and that such applied to the national governments pursuant to Article 234 of the Constitution, which also excludes the functions from application to the offices in the service of County Governments. The third paragraph thus emphasised that the PSC guidelines for Nursing Personnel and Clinical Officers are for the national Government and, therefore, County Governments are not obligated to implement them. 32.Further, under paragraph four, the CEO indicated that the County Governments are employers and were not involved in developing the career guidelines. And the fifth paragraph addresses the judgment of 17 December 2025, indicating:… among other orders, the court stated that implementation of the guidelines was not mandatory for County Governments, but such implementation was optional and contingent upon approval by the respective County Public Service Boards.In conclusion, the CEO indicates:… Importantly, having reviewed the letters from PSC and the judgment in its entirety, the Council advises counties to adhere to the previous schemes of service until such a time that they are reviewed in accordance with the relevant constitutional and statutory provisions." 33.Is there contempt of court regarding the letter dated 29 December 2025? 34.As outlined above, the judgment of 17 December 2025 returned the parties to the position subsisting before the PSC letters and the 3rd interested party meeting held on 2 September 2025 and the resultant letter issued on 3 September 2025. Thus, the letter dated 29 December 2025 by the 3rd interested party CEO seeks to elaborate, albeit in different words, on the judgment vis-à-vis the background leading to it. 35.Indeed, the letter of the 3rd interested party acknowledges that the parties were to apply the schemes of service in operation until they were reviewed in accordance with the law and the constitution. 36.The court finds no matter of contempt of court orders issued on 17 December 2025. 37.However, the 3rd interested party must appreciate the cause of action leading to the various applications comprised in JR E027 of 2025 and JR E057 of 2025. To ignore the same will not foster industrial peace. The applicants' agitation should not be ignored. 38.Whereas the applicants should engage within the parameters of the law, the respondents, and indeed the 3rd interested party, are guided by the best practices codified by the 1st interested party in the Public Service Commission-approved Career Guidelines for Clinical Officers. A good case example is addressed in the judgment of 17 December 2025 regarding Machakos ELRCPET No. E005 of 2024. 39.Thus guided, taking the position that engaging in the matter and the resultant judgment is optional rather than mandatory will not foster industrial peace. 40.Indeed, the court appreciates the position taken by the PSC in these proceedings. Not taking sides. As the holder of best practices under its mandate under Article 234 of the Constitution, the guidelines developed provide respondents and the 3rd interested party with a template.This shall suffice. 41.Accordingly, the application dated 19 February 2026 is without merit and is hereby dismissed. For industrial peace, no orders on costs. DELIVERED IN OPEN COURT THIS 9TH DAY OF JULY 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Kemboi……………………………………………… and …………………………………..………