https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2005

Kenya Union of Clinical Officers v Chief Officer Health Services County Government of Marsabit & 3 others (Judicial Review Application E002 of 2026) [2026] KEELRC 2005 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2005 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Judicial Review Application E002 of 2026 SC Rutto, J July 3, 2026 Between Kenya Union of Clinical Officers Applicant and Chief Officer Health Services County Government of Marsabit 1st Respondent Public Service Board 2nd Respondent County Government of Marsabit 3rd Respondent and Dr Adan Al-Amin Contemnor Ruling 1.The Applicant has moved this Court by way of a Notice of Motion dated 13th May 2026, expressed to be brought under Article 159(2)(d) of the Constitution, Section 5 of the Judicature Act, Section 11 of the Fair Administrative Action Act, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 50 Rule 1 of the Civil Procedure Rules, 2010. 2.Through the said Notice of Motion, the Applicant seeks the following orders:1.Spent.2.Spent.3.This Honourable Court be pleased to declare and hold that the Respondents/Contemnors and Dr. Adan Al-Amin being well aware of the Orders of this Honourable Court given on 5th May 2026 in this matter and the related Nyeri ELRCPET No. E049 of 2025 has disobeyed those orders and hence is in civil contempt of court.4.The Respondents/Contemnors herein be sanctioned by this Honourable Court 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 Kenya Shillings Two hundred thousand (200,000/=) or both.5.The Contemnors herein be denied audience by this Honorable 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.6.The costs of this application be borne personally, jointly and severally by the Contemnors herein, on full indemnity basis. 3.The Motion is premised on the grounds set out on its face and is supported by the Affidavit of George Gibore, the Applicant’s General Secretary. Mr. Gibore deposes that he is aware that on 5th May 2026, this court issued an order barring the Respondents/contemnors from initiating any form of disciplinary action against the Applicant’s members as a result of the posting order issued on 4th December 2025. 4.Mr. Gibore further deposes that the orders issued on 5th May 2026 were made after the Court heard both parties in the presence of their respective advocates and representatives. 5.He states that, on the same date, the parties recorded consent orders in both the present matter and the related Nyeri ELRC Cause No. E049 of 2025, whereby the Respondents/alleged Contemnors undertook to cease all disciplinary action against the Applicant's members arising from the posting order dated 4th December 2025, in accordance with the Return to Work Formula adopted as an order of the Court in the related petition. 6.He further deposes that, notwithstanding the said consent orders issued on 5th May 2026 in this matter and the related Nyeri ELRC Cause No. E049 of 2025, the Respondents/alleged Contemnors deliberately and without lawful justification directed, through a letter dated 12th May 2026 authored by Dr. Adan Al-Amin, the County Chief Officer for Medical Services, that all Hospital Chief Executive Officers, Medical Officers of Health and Facility In-Charges continue implementing the posting order of 4th December 2025. According to him, those directives were issued in direct contravention of the terms of the consent and the Return to Work Formula recorded by the Court. 7.Mr. Gibore further avers that the Respondents/alleged Contemnors, despite being represented by counsel and fully aware of the consent orders made on 5th May 2026 in both matters, deliberately disregarded those orders. He contends that although the parties had expressly agreed to suspend all disciplinary action relating to the redeployment of the Applicant's members under the Return to Work Formula, the Respondents nonetheless issued directives requiring immediate compliance with the earlier posting order and threatened administrative action against those who failed to comply. 8.He further states that the directives contained in the letter dated 12th May 2026 constitute a deliberate violation of the Court's orders and have resulted in several clinical officers being removed from the duty roster, contrary to the Return to Work Agreement and the orders of the Court. 9.It is further deposed that the Respondents' alleged acts of contempt and disregard of the Court's authority have prejudiced the Applicant's members by undermining their livelihoods. 10.In Mr. Gibore’s view, the impugned actions are targeted and punitive, having been directed at specific individuals on account of the strike. 11.Mr. Gibore further avers that the Applicant has no other effective means of enforcing the orders issued on 5th May 2026. 12.He contends that the Respondents' continued non-compliance has undermined the authority and dignity of the Court, exposing it to ridicule and disrepute, and to this end, he has urged the Court to find the Respondents/alleged Contemnors in contempt in order to uphold the authority of its orders. 13.The Respondents opposed the Motion through the Replying Affidavit sworn on 19th June 2026 by Arero Halkano, the County Secretary of the County Government of Marsabit. 14.Mr. Halkano admits that on 5th May 2026, the parties and their respective representatives attended Court and held discussions which culminated in the formulation of a Return to Work Formula in respect of ELRC Cause No. E049 of 2025, which was subsequently adopted as an order of the Court. 15.He further avers that, on the same date, the present Judicial Review Application, ELRC JR No. E011 of 2025 came up for mention, during which the parties agreed to pursue an out of court settlement within thirty (30) days. According to him, that consensus was communicated to the Court by counsel for the respective parties and duly recorded. 16.Mr. Halkano deposes that he was present during both the discussions and the ensuing court proceedings, and maintains that at no point did the Court issue an order suspending the posting order dated 4th December 2025. He asserts that the only order recorded in ELRC JR No. E011 of 2025 was that the parties would explore an out of court settlement. 17.He further states that, even before the out of court engagements commenced, the County Attorney informed him that the Respondents had been served with the present contempt application, which is founded on an internal communication issued by the Chief Officer for Health and addressed to Hospital Chief Executive Officers, Medical Officers of Health and Facility In-Charges. 18.According to Mr. Halkano, the County Attorney was also served with a letter dated 11th May 2026 from the Applicant's advocates alleging punitive action and victimization of the Applicant's members. He contends that the letter misconstrued both the Court proceedings and the consent recorded by the parties, as well as the communication dated 12th May 2026. 19.Mr. Halkano further avers that the communication dated 12th May 2026 was an internal administrative communication directed to third parties and not to the Applicant or its members. He therefore contends that the present contempt proceedings, founded on that communication, are frivolous and actuated by malice. 20.Mr. Halkano deposes that the posting order dated 4th December 2025 was an administrative measure necessitated by operational exigencies within the County's health sector. 21.In that regard, Mr. Halkano states that several human resource changes had occurred across various health facilities, including staff resignations, the failure of some newly recruited officers to report for duty, evolving service delivery requirements and other operational developments. According to him, those changes necessitated a review and rationalization of staff deployment to ensure continuity and efficiency in the delivery of health services throughout the County. 22.Mr. Halkano further contends that the Applicant has deliberately conflated the present proceedings with ELRC Cause No. E049 of 2025, thereby creating unnecessary confusion. He maintains that the Return to Work Formula adopted as an order of the Court in the Petition did not determine or compromise the issues pending in these Judicial Review proceedings, particularly those concerning the posting order dated 4th December 2025. 23.He further deposes that, of the thirty (30) officers affected by the transfer, nineteen (19) had already reported to their new duty stations. In his view, any officer dissatisfied with the transfer was at liberty to challenge it through the established mechanisms, which did not preclude compliance with the transfer pending the determination of any appeal or request for reconsideration. 24.Mr. Halkano further avers that neither he nor the other alleged contemnors were personally served with any court order relating to the posting order dated 4th December 2025, and consequently denies that they have disobeyed any order of the Court. 25.He adds that the Applicant has neither exhibited nor produced any court order acknowledged or endorsed by any of the alleged contemnors. He further states, on the advice of the County Attorney, that no Affidavit of Service has been filed through the CTS as proof of service of any such order. 26.Mr. Halkano further deposes, on the advice of the County Attorney, which he believes to be sound, that the Applicant cannot sustain generalized allegations of contempt against the alleged contemnors. He contends that the Applicant has failed to identify with precision the acts or omissions constituting the alleged contempt or to attribute them individually to each alleged contemnor. 27.He therefore avers that, in the absence of cogent evidence satisfying the applicable rules of evidence, the Applicant has failed to establish any act or omission amounting to contempt of court. 28.According to Mr. Halkano, the present contempt proceedings were instituted either maliciously or in retaliation, with the objective of exerting undue pressure on officials of the Respondent County Government to make decisions outside the law and established administrative procedures. 29.Mr. Halkano maintains that the application for contempt of court is misconceived, as the Applicant has failed to identify any court order that was allegedly disobeyed by the Respondents. 30.In response to the Respondents’ Replying Affidavit, the Applicant filed a Supplementary Affidavit sworn by George Gibore on 29th June 2026. 31.Mr. Gibore posits that the orders recorded on 5th May 2026 went beyond merely directing the parties to explore an out of court settlement. According to him, the parties expressly agreed that no further disciplinary action would be undertaken on account of the posting order dated 4th December 2025 and that the Return to Work Formula would be adopted as an order of the Court. He contends that the alleged contemnors have selectively presented only part of the Court's orders while omitting the operative terms upon which the present contempt proceedings are founded. 32.Mr. Gibore further avers that the memorandum dated 12th May 2026 expressly directed compliance with the posting order dated 4th December 2025 notwithstanding the execution of the Return to Work Formula between the County Government and the Union. 33.He further deposes that immediately after the memorandum was issued, its directives were implemented across various health facilities through Hospital Chief Executive Officers and Facility In-Charges. 34.According to him, this prompted the Applicant to write to the Chief Officer for Medical Services by email dated 26th May 2026 seeking clarification on the directives, on the basis that they were inconsistent with the consent recorded before the Court. He states that no clarification was forthcoming. 35.Mr. Gibore further avers that, to his knowledge, only three (3) of the nineteen (19) Clinical Officers who were redeployed reported to their new duty stations, following which their salaries were reinstated. He states that the remaining sixteen (16) officers continued to render services at their previous stations. Of those sixteen (16), ten (10) have allegedly not had their salaries reinstated, while the remaining six (6) have had their salaries restored despite not reporting to their redeployed stations. 36.He contends that the alleged contemnors have offered no explanation for this differential treatment, which, in his view, demonstrates arbitrary and discriminatory conduct devoid of any lawful or rational basis. 37.Mr. Gibore further deposes that the memorandum of 12th May 2026 threatened Hospital Chief Executive Officers, Medical Officers of Health and Facility In-Charges with administrative action should they permit redeployed Clinical Officers to continue serving at their former duty stations. He contends that the alleged contemnors thereby employed third parties as agents to implement the very administrative action prohibited by the Court's orders. 38.He further avers that despite having full knowledge of the Court orders issued on 13th May 2026 and 11th June 2026, the alleged contemnors have continued to implement the impugned directive by enforcing the redeployment and selectively withholding the salaries of the affected Clinical Officers, in blatant disregard of the authority of the Court and its orders. 39.Mr. Gibore further states that, pursuant to the consent recorded on 5th May 2026, the Applicant lodged a collective appeal on 21st May 2026, while the affected officers filed individual appeals which were received by the Office of the Chief Officer for Medical Services on 25th May 2026. 40.He contends that despite receipt of those appeals, the alleged contemnors neither considered nor determined them, nor communicated the outcome thereof. According to him, this demonstrates a deliberate disregard of the dispute resolution mechanism agreed upon before the Court. 41.He further avers that the alleged acts of contempt consist of the issuance and implementation of the directive dated 12th May 2026, the continued enforcement of the redeployment order after the Court's intervention, the exclusion of certain officers from the payroll, the refusal to reinstate officers who continued rendering services, the disregard of the suspension orders issued on 13th May 2026, and the subsequent failure to preserve the status quo following the orders made on 11th June 2026. 42.On the issue of service of the Court orders, Mr. Gibore deposes that Mr. Arero Halkano and the Respondents' advocates were present in Court when the orders of 5th May 2026 were recorded. He further states that the Respondents were subsequently served with the orders issued on 13th May 2026 and 11th June 2026. He therefore maintains that the alleged contemnors had full knowledge of all the relevant Court orders. Submissions 43.Pursuant to the directions issued by the Court on 18th June 2026, the Motion was disposed of by way of written submissions. 43.In its submissions, the Applicant argues that the Supporting Affidavit and the Supplementary Affidavit demonstrate that the consent adopted by the Court on 5th May 2026 imposed substantive obligations upon the parties. According to the Applicant, those obligations included the suspension of disciplinary action arising from the redeployment, the adoption of the Return to Work Formula as an order of the Court, and the grant of a thirty (30) day period within which the affected Clinical Officers could lodge appeals. 43.The Applicant further submits that, in view of those orders, the Respondents had no lawful basis for issuing or implementing the directive dated 12th May 2026 while the Court's orders remained in force. 43.It is further submitted by the Applicant that the directive of 12th May 2026 expressly refers to compliance following the execution of the Return to Work Formula. The Applicant contends that the Respondents cannot now contend that the directive was unrelated to its members. In the Applicant's view, the directive amounted to the implementation of the very redeployment process that had been suspended by the Court. 43.The Applicant further submits that the Respondents continued implementing the impugned directive notwithstanding the Court's orders of 13th May 2026 suspending the directive and those of 11th June 2026 directing the parties to maintain the status quo. According to the Applicant, those actions constitute fresh and continuing acts of contempt. 43.In support of its position, the Applicant has relied on several authorities, including Shimmers Plaza Ltd v National Bank of Kenya Ltd [2015] eKLR and Kenya County Government Workers Union v County Government of Bomet & Another, ELRC Cause No. E016 of 2022. 43.As at the time of writing this judgment, the Respondents' written submissions were not traceable on the Court's online portal. Analysis and Determination 43.Having carefully considered the Notice of Motion, the Replying Affidavit, the Supplementary Affidavit, and the Applicant’s submissions, the Court finds that the sole issue falling for determination is whether the Respondents, as the alleged contemnors, are in contempt of the consent orders of 5th May 2026. 44.The Applicant's case is that the Respondents willfully and deliberately disobeyed the consent orders recorded on 5th May 2026 by issuing the directive dated 12th May 2026, which required the implementation of the redeployment order and threatened administrative action against those who failed to comply. 45.The Respondents, on the other hand, deny having violated any order of the Court. Their position is that no order was ever issued suspending the posting order dated 4th December 2025 and that the Applicant has failed to identify any specific order that was allegedly breached. 46.Against these rival positions, the central question for determination is whether the Applicant has established, to the requisite standard, that the Respondents are guilty of contempt of the Court's orders. 47.Black's Law Dictionary (9th Edition) defines contempt of court as:“The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice. 48.It has been said times without number that the purpose of contempt proceedings is to uphold the authority of the Court and safeguard the rule of law. The jurisdiction to punish for contempt exists to ensure compliance with court orders, which is indispensable to the proper administration of justice. This position was affirmed in the case of Teachers Service Commission v Kenya National Union of Teachers & 2 others (2013) eKLR. 49.It is equally a cardinal principle of the rule of law that court orders must be obeyed unless and until they are set aside, varied or discharged by a court of competent jurisdiction. Consequently, a person who willfully and deliberately disobeys an order requiring the performance of, or restraint from, a particular act is liable to be cited for contempt of court. 50.Against that legal backdrop, the next issue for consideration is the ingredients that an applicant must establish in order to succeed in civil contempt proceedings. 51.In the case of Sheila Cassatt Issenberg & Watoto World Centre v Antony Machatha Kinyanjui [2021] KEHC 5692 (KLR), the Court identified the elements that must be proved in civil contempt proceedings as follows:“The Cromwell J, writing for the Supreme of Canada in Carey v Laiken, 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:i)The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.ii)The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the willful blindness doctrine.iii)The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.” 52.Similarly, in North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi [2016] KEHC 7193 (KLR), the Court, drawing from Contempt in Modern New Zealand, restated the essential ingredients that must be established to prove civil contempt as follows: -a.The terms of the order (or injunction or undertaking were clear and unambiguous and were binding on the defendant;b.The defendant had knowledge of or proper notice of the terms of the order;c.The defendant has acted in breach of the terms of the order; andd.The defendant conduct was deliberate. 53.It is common ground that on 5th May 2026, the parties appeared before the Court together with their respective advocates and, following negotiations, executed a Return to Work Formula in Nyeri ELRC Cause No. E049 of 2025, which was subsequently adopted as an order of the Court. On the same date, the parties also recorded a consent in the present proceedings to the effect that any disciplinary process commenced against the Applicant's members would remain stayed for thirty (30) days pending further directions of the Court. As submitted by learned counsel for the respective parties, the purpose of the thirty (30) day period was to facilitate further engagements between the parties and to afford the employees affected by the posting order an opportunity to lodge appeals as appropriate. 54.It is equally not disputed that, by a memorandum dated 12th May 2026, the County Chief Officer for Medical Services, Dr. Adan Al-Amin, directed all Hospital Chief Executive Officers, Medical Officers of Health and Facility In-Charges to ensure compliance with the posting order dated 4th December 2025 following the signing of the Return to Work Formulae between the County Government and the Applicant Union. 55.It is that memorandum which forms the basis of the present contempt proceedings. 56.The question that therefore falls for determination is whether the issuance of the memorandum dated 12th May 2026 constituted a breach of the consent order recorded on 5th May 2026 and, if so, whether such breach was willful and deliberate. 57.Resolution of that question turns on the proper construction of the consent order of 5th May 2026, and in particular, whether the memorandum dated 12th May 2026 directing compliance with the posting order amounted to a breach of the terms of that consent. 58.It is evident that by the time the consent was recorded on 5th May 2026, the posting order dated 4th December 2025 had already been issued and was in force. While the parties expressly agreed to suspend any disciplinary proceedings commenced against the Applicant's members, they did not agree to suspend or set aside the posting order itself. 59.In essence, the consent order stayed disciplinary proceedings arising from the implementation of the posting order but did not suspend or invalidate the posting order itself. 60.Indeed, the record bears that learned counsel for the Applicant, Dr. Ataka, strongly urged the Court to suspend or stay the posting order. However, no consensus was reached on that proposal, and consequently, neither the parties nor the Court adopted any order suspending or staying the posting order. 61.The only common ground reached by the parties, and which ultimately crystallized into the consent recorded by the Court on 5th May 2026, was that the disciplinary proceedings commenced against the Applicant's members would be stayed. 62.Accordingly, the Court finds that the issuance of the memorandum dated 12th May 2026 directing Hospital Chief Executive Officers, Medical Officers of Health and Facility In-Charges to ensure compliance with the posting order did not amount to a continuation of disciplinary proceedings already commenced against the Applicant’s members in contravention of the consent order of 5th May 2026. 63.Properly construed, the consent order did not interfere with the validity or operation of the posting order dated 4th December 2025. Its purpose was limited to suspending disciplinary action against the affected officers pending further directions of the Court and deliberations by the parties. 64.As already stated herein, a finding of contempt can only issue where it is demonstrated that a party has deliberately breached a clear and unambiguous court order binding upon him or her. 65.Having carefully considered the material before the Court in this case, and bearing in mind the higher standard of proof applicable in contempt proceedings, I am not persuaded that the issuance of the memorandum dated 12th May 2026 amounted to a continuation of the disciplinary proceedings already commenced against the Applicant's members. Rather, the memorandum sought to ensure compliance with the posting order, which had neither been stayed by the Court nor suspended by the parties' consent. 66.It has been held in a long line of authorities that in order to succeed in contempt proceedings, an applicant has to prove the terms of the order, knowledge of these terms by the respondent, and failure by the respondent to comply with the terms of the order. 67.Applying the foregoing elements to the present case, the Court is not persuaded that the Applicant has established, to the requisite standard, that the Respondents willfully and deliberately breached the consent order recorded on 5th May 2026. Put differently, the evidence placed before the Court falls short of the threshold required to sustain a finding of contempt. 68.In so finding, the Court is cognizant that contempt proceedings are quasi-criminal in nature and, for that reason, the standard of proof is higher than that applicable in ordinary civil proceedings. This is because the liberty of the alleged contemnor may ultimately be at stake, and the Applicant must therefore establish willful and deliberate disobedience of the court order complained of. See the cases of Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227 and Peter K. Yego & Others v Pauline Nekesa Kode, Nakuru HCCC No. 194 of 2004 69.In the final analysis, the Court finds that the Applicant has failed to prove its case to the requisite standard. Consequently, the Notice of Motion dated 13th May 2026 is disallowed with an order that each party shall bear its own costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY 2026.………………………………STELLA RUTTOJUDGEIn the presence of:Ms. Ngumbao instructed by Dr. Ataka for the ApplicantNo appearance for the RespondentsNdati Court AssistantORDERIn view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.STELLA RUTTOJUDGE