Kenya Union of Clinical Officers v County Government of Vihiga & another (Petition E003 of 2025) [2026] KEELRC 1875 (KLR) (25 June 2026) (Judgment)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KAKAMEGA PETITION NO. E003 OF 2025 KENYA UNION OF CLINICAL OFFICERS ............. PETITIONER VERSUS COUNTY GOVERNMENT OF VIHIGA…..…..1ST RESPONDENT VIHIGA COUNTY VIHIGA PUBLIC SERVICE BOARD……….... 2ND RESPONDENT (BEFORE HON. JUSTICE DAVID NDERITU) I. INTRODUCTION JUDGEMENT 1.In a petition dated 14th January 2025 filed through AKO Advocates LLP, the Petitioner, a trade union, is seeking for the following orders – 1. Declaratory orders THAT – a) The respondents are in breach of the said members’ right to fair labour practices under Article 41 of the Constitution by unfairly refusing and/or failing to effect promotions and re-designations as provided for in PSC Human Resources Management Policies, the guidelines for transition of staff to counties published in Vol. CXVI. No. 20 of the Kenya Gazette on the 7th ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 1 | P A G E February 2014, Public Service Commission Human Resources Manual, 2016 and PSC Career Guidelines for Clinical Officers, May 2024. b) The respondents, by failing to undertake promotions and re- designations, have breached the Petitioners members’ legitimate expectation and right to fair labour practices by failing to honour the terms of the Recognition Agreement dated 19th December 2017 and under the terms of the RTWFs that they have signed on 4th September 2023 and 11th July 2024. c) The respondents, by failing to put in place a comprehensive medical insurance cover, have breached the Petitioners members’ legitimate expectation and right to fair labour practices by failing to honour the terms of the Return-to-Work Formula dated 4th September 2023. d) The Respondents are in breach of the Petitioners members’ right to fair labour practices under Articles 41 and 43(1)(a) of the Constitution by failing to put in place an effective medical insurance scheme for the employees, as also envisaged under Section 34 of the Employment Act. e) The respondents have defeated the Petitioners members’ legitimate expectation and are therefore in breach of the said members’ right to fair administrative action under Article 47 ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 2 | P A G E of the Constitution for failing to honour their undertakings in various agreements in respect of promotions and re- designations and medical insurance scheme. f) The Respondents are in breach of the Petitioner’s members’ right not to be discriminated upon as enshrined under Section 5 of the Employment Act and Article 27 of the Constitution by giving preferential treatment in promotions and redesignations to other employees in other cadres in the health sector at the expense of the Petitioner’s members. g) The Respondents pose a threat to the said members’ right to go on strike under Article 41(2)(d) of the Constitution by perpetually sabotaging strike notices issued by the Petitioner. 2. A judicial review orders of mandamus directing the Respondents to forthwith: a) effect promotion and re-designations of the members of the Petitioners as provided for in Public Service Commission Human Resource Policies and Procedures Manual for the Public Service May, 2016, PSC Career Guidelines for Clinical Officers dated May 2024 and as agreed in the Recognition Agreement dated 19th December 2017 and under the terms of two RTWFs that they signed on 4th September 2023 and 11th July 2024. b) Procure, effect and operationalize a comprehensive medical ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 3 | P A G E insurance scheme for the members of the petitioner as agreed in RTWF dated 4th September 2023. 3. A declaratory that the Petitioner and its members have a constitutional right to call for and proceed on strike on account of the Respondents’ failure to meet their mandate in law and as per the terms of undertakings as agreed in the Recognition Agreement dated 19th December 2017 and under the terms of the two RTWFs that they signed on 4th September 2023 and 11th July 2024 and such other and or other future agreements regarding the issues entailed in the agreements. 4. Costs on full indemnity basis. 5. Such further or other orders as it may deem just and expedient for the ends of justice. 2.The petition is expressed to be anchored on Articles 2(1), 3(1), 10, 23, 41,47, 73, 162(2)(a), 174, 175, 201 & 205 of the Constitution. 3.The petition is supported with an affidavit sworn by George M. Gibore, the General Secretary of the Petitioner, on even date, with one annexure thereto. The Petitioner also filed a further affidavit sworn by the same deponent on 12th August 2025. 4.The Respondents entered appearance through the Office of the County Attorney and filed an answer to the petition dated 23rd January 2025. Accompanying the answer to the petition were the verifying affidavits by Mary Anyiendah, Chief Officer in the Department of Health Services, ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 4 | P A G E and Peter Inonda, the Secretary to the 2nd Respondent, both sworn on 23rd January 2025. The Respondents also filed a further affidavit sworn by Mwamiri Vincent Chanzu, the County Secretary of the 1st respondent, on 13th January 2026, and a supplementary affidavit sworn by Mary Anyienda on 19th February 2025. 5.By consent, the court directed that the petition be canvassed by way of written submissions. 6.Ms Ngome for the Petitioner filed written submissions dated 5th December 2025. Mr Godia for the Respondents filed written submissions dated 13th January 2026. II. THE EVIDENCE 7. The members of the Petitioner are clinical officers in the employ of the 1st Respondent in its various health facilities across the County of Vihiga. The Petitioner lodged the petition for and on behalf of its members in employ by the 1st Respondent, alleging violation of constitutional and labour rights arising from the Respondents’ failure to honour and implement agreed obligations and commitments in their relationship as employer and employee. 8. The Petitioner posits that the parties executed a recognition agreement dated 19th December 2017 but disputes arose due to the Respondents’ failure to implement promotions and redesignations for clinical officers, provide comprehensive medical insurance cover, honour the terms of various Return-to-Work Formulae (RTWFs), and comply with Public ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 5 | P A G E Service Commission policies and the Career Guidelines for clinical officers. 9. According to the Petitioner, following a strike notice issued in August 2023, the parties entered into a RTWF dated 4th September 2023 under which the Respondents undertook to provide a comprehensive medical insurance cover and process promotions. The Petitioner states that despite calling off the strike and resuming work, the Respondents failed to implement those commitments. A further strike notice issued in March 2024 resulted in another RTWF dated 11th July 2024, in which the Respondents undertook to expedite promotions and redesignations and ensure fairness in career progression. The Petitioner contends that those commitments were similarly not honoured. 10. The Petitioner further avers that although the Public Service Commission published Career Guidelines for Clinical Officers in May 2024, the Respondents failed to implement the same. It is stated that approximately 117 of the employees qualify for promotion and redesignation but have been denied the same, while employees in other health cadres have received preferential treatment. It is the Petitioner’s case that this conduct by the Respondents amount to discrimination contrary to Articles 27 & 41 of the Constitution. 11. The Petitioner states that owing to the continued failure by the Respondents to address these grievances, it issued a further strike ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 6 | P A G E notice on 2nd December 2024 and commenced a strike on 16th December 2024. It maintains that the strike has not been declared unlawful and therefore remains protected under Article 41(2)(d) of the Constitution. The Petitioner further states that in response to the strike, the Respondents threatened disciplinary action, interdictions, and withholding of salaries against the striking employees. 12. The Petitioner further contends that after the Court directed on 5th June 2025 that striking employees would not be entitled to salaries pending determination of the Petition, the strike was suspended in good faith to facilitate an amicable resolution of the dispute. Despite this, the Respondents allegedly reinstated only some members to the payroll and subjected them to substantial deductions exceeding Kshs23,000/=, while others were excluded from the payroll. It is further alleged that some members have not been receiving pay-slips, others have not been reinstated to the payroll despite resuming duty and, some other officers on study leave have not received their salaries and the accrued arrears. 13. The Petitioner further avers that notwithstanding the Court's directions encouraging engagement between the parties, the Respondents have failed and/or refused to convene or participate in meetings aimed at resolving the dispute. The Petitioner maintains that it acted in good faith by suspending the strike, but the Respondents have continued to frustrate its members through salary deductions, removal from payroll, ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 7 | P A G E and failure to implement the applicable career guidelines. 14. It is further stated that the Petitioner’s branch chairperson, who continued rendering services in a managerial capacity during the dispute, was discriminated against and denied salary from February 2025, while other managers continued receiving their remuneration. The Petitioner contends that the removal of employees from the payroll was unlawful, as the same was done by a Chief Officer without the authority to remove officers from payroll except with the approval of the 2nd Respondent and in compliance with the applicable human resource management procedures. 15. The Petitioner seeks declaratory reliefs, orders of mandamus compelling implementation of promotions, redesignations, and comprehensive medical insurance cover, a declaration affirming the members' constitutional right to strike, costs of the petition, and any other relief that the Court may deem just and appropriate in the circumstances. 16. In the answer to the petition and the affidavits sworn on their behalf, the Respondents deny violating the Petitioner's constitutional and labour rights and contend that they neither discriminated against the clinical officers nor unlawfully failed to promote, redesignate or provide employment benefits. They state that although the Petitioner issued a strike notice on 2nd December 2024, indicating that the strike would commence on 19th December 2024, the members ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 8 | P A G E commenced the strike on 16th December 2024, thereby disrupting delivery of essential service in all public health facilities. 17. The Respondents aver that prior to the strike, they convened a consultative meeting involving the Petitioner and four other health sector trade unions to discuss issues relating to recognition agreements, statutory remittances, promotions, and redesignations. They contend that resolutions were reached and accepted by the other unions, but the Petitioner failed to attend the meeting and proceeded to call for the strike. The Respondents further state that all members of the Petitioner participated in the strike, causing paralysis of health services despite clinical officers providing essential services under Section 81 of the Labour Relations Act and, without them putting in place measures to ensure continuity of critical services. 18. The Respondents deny allegations of discrimination and assert that between 2021 and 2024, 61 members of the Petitioner benefited from promotions and redesignations compared to 14 medical officers. They further contend that the Petitioner failed to formally notify them of its branch officials and the location of its county office and declined to embrace negotiations to find solutions. The Respondents maintain that the members of the Petitioner were absent from work and not rendering services during the strike and that withholding of their salaries was therefore justified. They also contend that the Petitioner failed to exhaust the dispute resolution mechanism ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 9 | P A G E contained in the Recognition Agreement before filing suit and that similar disputes had previously been the subject of Bungoma ELRC Petition No. E008 of 2021, in which the Court directed the parties to negotiate. 19. In response to the further affidavit by the Petitioner, the Respondents state that all County employees, including members of the Petitioner, are now covered under a comprehensive medical insurance scheme through the Social Health Authority (SHA) under the Public Officers Medical Scheme Fund pursuant to an agreement executed on 12th September 2025, thereby resolving the grievance relating to medical cover. They further contend that the members of the Petitioner were on strike from December 2024 until 8th July 2025 and only suspended the strike after the Court's ruling of 16th June 2025 to the effect that striking employees are not entitled to salaries. 20. According to the Respondents, the striking employees continued receiving salaries from public funds despite not rendering services, and hence any deductions or recoveries undertaken were lawful, necessary, and consistent with the Court's orders and accountable public finance management. 21. The Respondents further rely on a supplementary affidavit sworn by the County Chief Officer for Health Services, stating that following the Court's directions of 21st January 2025, representatives of the parties met in an effort to resolve the dispute. During those ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 10 | P A G E engagements, the Petitioner presented a list of clinical officers proposed for promotion and redesignation, together with an estimated financial implication of Kshs44,053,320. The Respondents contend that implementation of the proposed promotions and redesignations was not possible during the 2024/2025 financial year due to lack of budgetary allocation and funding. They maintain that public funds cannot be committed or expended unless duly budgeted for in accordance with public finance management principles. The Respondents further state that although the Petitioner relies on the Career Guidelines for Clinical Officers approved by the Public Service Commission in May 2024, the County Public Service Board sought guidance from the Public Service Commission regarding their implementation before taking further action. 22. The Respondents, therefore, deny acting in bad faith and instead contend that the Petitioner frustrated efforts at settlement by filing an appeal challenging the Court’s ruling on non-payment of salaries to striking workers. They maintain that the grievance on the medical cover has since been resolved, salary deductions and recoveries were justified, the proposed promotions and redesignations could not be implemented due to budgetary constraints and pending guidance on the Career Guidelines and, that the Petition is without merit and ought to be dismissed. III. SUBMISSIONS BY COUNSEL ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 11 | P A G E 23.Ms. Ngome, Learned Counsel for the petitioner submitted on four issues – Whether the grievances in the strike notice issued on the 2nd December 2024 by the Petitioners are valid and whether the Petitioner was justified in calling for a strike; Whether the petition raises issues of violation of Human rights for the court to grant so vent in that regard; Whether the petitioners are entitled to salaries withheld during the strike period; and, Who bears the costs of this petition. 24.On the first issue, Counsel submitted that its members were constitutionally entitled to call and participate in the strike under Article 41(2)(d) of the Constitution due to the Respondents’ failure to honour commitments contained in the Recognition Agreement, the RTWFs dated 4th September 2023 and 11th July 2024, the resolutions of 22nd December 2023, and the 2nd Respondent’s letter of 11th March 2024. The grievances concerned promotions and redesignations, implementation of Career Guidelines for Clinical Officers and provision of comprehensive medical insurance cover. The Petitioner contends that the Respondents failed to address these issues, thereby justifying the strike. It is further noted that its members have since resumed work in good faith. 25.It is further submitted that the Respondents violated the constitutional rights of the employees, particularly the rights to fair labour practices and freedom from discrimination under Articles 41 and 27 of the ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 12 | P A G E Constitution. Counsel cited County Government of Machakos v Kenya Union of Clinical Officers [2024] KEELRC 13567 (KLR), wherein the Court held that failure to provide medical insurance cover, redesignations, promotions and RTWF commitments amounted to a violation of the employees’ right to fair labour practices. Counsel argued that the circumstances in the present dispute are substantially similar and warrant the grant of the declaratory relief sought. To buttress this position further, Counsel cited Kenya Union of Clinical Officers v Baringo County Public Service Board & 49 others [2025] KEELRC 3661 (KLR) that concerned substantially the same issues. 26.On the issue of withheld salaries, Counsel submitted that the grievances leading to the strike were genuine and arose from the Respondents' continued failure to implement agreed obligations and approved Career guidelines. Citing County Government of Machakos v Kenya Union of Clinical Officers (supra) Counsel argued that employees who participated in the strike remain entitled to salaries and benefits where the grievances were valid and both parties contributed to the circumstances giving rise to the industrial action. The Petitioner, therefore, contends that its members are entitled to payment of the withheld salaries and benefits. 27.Counsel concluded that the Petitioner has demonstrated violations of the constitutional and labour rights of its members and established a ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 13 | P A G E case for grant of the reliefs sought in the Petition with costs. 28.On the other hand, Mr. Godia, Learned Counsel for the Respondents, submitted on two issues – Whether the petition dated 14th January 2025 is merited; and, Who should bear costs of the petition. 29.It is submitted that the petition is incompetent and should be struck out for failure to exhaust the dispute resolution mechanism provided for under Clause 5 of the Recognition Agreement and Section 62 of the Labour Relations Act. It is argued that although consultative meetings were held between the parties, the Petitioner never referred the dispute to the Cabinet Secretary responsible for Labour Relations after negotiations failed, thereby violating the agreed dispute resolution procedure. Counsel contended that this failure deprived the Petitioner of locus standi and divests the Court’ of jurisdiction over the subject matter. Counsel relied on the doctrine of exhaustion as defined in Black's Law Dictionary and applied in William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR. 30.Counsel further invoked the doctrine of constitutional avoidance, arguing that the dispute concerns implementation of contractual and labour relations obligations which ought to be addressed through the mechanisms provided for under the Recognition Agreement and the Labour Relations Act before resorting to litigation in court. 31.On the merits, Counsel submitted that the petition fails to meet the ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 14 | P A G E threshold established in Anarita Karimi Njeru v Republic [1979] KLR and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. Counsel argued that the Petitioner merely alleged violations of constitutional rights without providing sufficient particulars or evidence establishing how those rights were infringed. Specifically, Counsel contended that although the Petitioner alleges that 117 of its members were denied promotions and redesignations, the Petitioner’s failed to identify those employees, provide their employment records, pay slips, personal numbers, job groups, or any evidence demonstrating entitlement to promotion or redesignation. It is submitted that in the absence of such particulars and details, the petition is rendered incapable of judicial determination. 32.Counsel further submitted that the prayer relating to comprehensive medical insurance cover has been overtaken by events since all County employees, including members of the Petitioner, are now covered under the Social Health Authority (SHA) Public Officers Medical Scheme Fund. Counsel argued that the alleged breaches of agreements concerning promotions, redesignations and medical cover amount to contractual disputes and do not constitute violations of Article 47 of the Constitution. To buttress these assertions, Counsel cited Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra) wherein the Court emphasized that constitutional ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 15 | P A G E jurisdiction should not be invoked where adequate alternative remedies exist. 33.On the allegation of discrimination, Counsel submitted that no evidence was tendered identifying the employees allegedly receiving preferential treatment or demonstrating unequal treatment. Counsel further contended that the allegation of discrimination was not proved. It is further argued that the prayer seeking a declaration that the Respondents threaten the right or workers to strike is speculative, negative in nature, and incapable of enforcement. 34.Counsel also opposed the prayer for mandamus compelling promotions and redesignations, submitting that the Petitioner failed to provide sufficient particulars of the affected employees and therefore the Court should not grant such orders. Counsel further maintains that the prayer on medical insurance cover has already been satisfied and that the prayer relating to the future right to strike is unnecessary and incapable of enforcement. 35.Consequently, counsel urges the Court to find that the petition raises no constitutional issues warranting determination and dismiss the petition in its entirety and award costs to the Respondents. IV. ISSUES FOR DETERMINATION 36.The court has read the petition, the answer to the petition, the affidavits filed, and the submissions by Counsel. The issues for determination are – Whether the grievances in the RTWF dated 4th ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 16 | P A G E September 2023 and 11th July 2024 between the parties have been fulfilled; Whether the strike called by the Petitioner was protected; Whether members of the Petitioner are entitled to the withheld salaries and benefits; Whether the Petitioner is entitled to remedies as prayed for in the petition; and, Who should bear the costs of the petition? V. GRIEVANCES 37.The RTWF of 4th September 2023 was reached following a strike notice dated 21st August 2023, and provided for the following salient issues – (i) A comprehensive medical cover by NHIF(then) for all County employees was to be implemented, subject to a supplementary budget. (ii) Promotion letters already issued were to be subjected to a verification by 17th September 2023. There was also a consensus that there could be ongoing consideration on promotions that could be expedited through County Human Resource Advisory Committee (CHRAC) to the Board. Departmental Human Resource Advisory Committee (DHRAC) was to submit the recommendations to CHRAC by 11th September 2023. (iii) There was consensus that there would be fairness in posting and assignment of duties and leadership appointments across all ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 17 | P A G E cadres in the departments of health. 38.In a letter dated 11th March 2024 by the 2nd Respondent addressed to various unions, including the petitioner, responding to a letter dated 6th February 2024 from the unions on promotions and redesignations, the 2nd Respondent confirmed that the CHRAC Report on promotion and redesignations had been tabled and an undertaking was made that by close of business on 15th March 2024 letters of promotion were to be issued. 39.On 19th March 2024, the Petitioner issued a seven-day strike notice. This culminated in the RTWF dated 11th July 2024, providing that – (i) The Respondents would have a list of officers promoted and those available for promotion within the specific cadres of employees. (ii) The recommendations on promotion in the CHRAC Report that had been forwarded to the County Service Board vide the letter dated 19th February 2024 were to be expedited and considered by the 2nd Respondent. (iii) Employees who had not been promoted for not availing their documents were to be notified within seven days after signing of the RTWF. (iv) The 2nd Respondent was to ensure fairness in all promotions/redesignations in compliance with the Career progression guidelines under Section B.25 of the PSC HR ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 18 | P A G E Policies and Procedures Manual. (v) Staff replacements were to be effected within the respective year. Unions were to avail copies of their respective recognition agreements. (vi) The 1st Respondent was to pay April 2024 salary arrears during the 2024/2025 FY. (vii) There would be no victimisation of staff who had participated in the strike. 40.This RTWF was followed by a strike notice dated 2nd December 2024, stating that since the parties entered into a RTWF, five months had lapsed and its members had not been promoted and redesignated as agreed. The Petitioner demanded that the RTWF be implemented and letters be issued before the lapse of the 14-day strike notice. The strike was to commence by 19th December 2024. 41.The evidence on record confirms that the strike commenced on 16th December 2024. 42.In an undated letter received by the 2nd Respondent on 6th January 2025, the Petitioner indicated that while the Respondents had made some promotions, the said promotions did not align with the career progression guidelines issued by the PSC. The Petitioner requested to be supplied with a list of the names of the promoted and redesignated employees. The Petitioner further indicated that while some of its members had been promoted, letters of promotion had not been ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 19 | P A G E issued. The Petitioner urged the respondent to dispatch the letters. 43.In a letter dated 15th January 2025, annexed to the affidavit of Mary Anyiendah in support of the application dated 23rd January 2025, the 2nd Respondent stated that – (i) A total of 15 members of the Petitioner had been promoted; (ii) 13 members who had errors in their job group had those errors corrected; (iii) 14 members who were specialists were also considered and letters of promotions issued: (iv) The rest of the members had been recommended for promotion or re-designation, but due to financial implications, the promotions/re-designations would be considered in the supplementary budget in FY2024/2025 and FY2025/2026. 44.In a letter dated 5th February 2025, the 2nd Respondent wrote to the Public Service Commission, confirming receipt of the career guidelines for clinical officers and indicating that their adoption would have financial consequences and sought guidance on how to implement the same. 45.The Respondents availed to court a contract for the provision of public officers' medical scheme between the Social Health Authority(SHA) and the 1st Respondent for the provision of a medical health cover for the period from 1st October 2025 to 30th September 2026. ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 20 | P A G E 46.The court has studied and contextualized the various positions taken by the parties and finds that the salient issues arising from the RTWFs, as sought in reliefs (a) to (f), were promotion and redesignations, preferential treatment in promotions, and comprehensive medical cover. The court makes the following findings and holdings – a) The Petitioner acknowledged that there has been promotions of some of its members. b) The Respondents have explained that it has been able to implement some promotions of the members of the Petitioner and for those who have not been promoted or redesignated, the Respondents have offered an explanation that the promotions or redesignations, though approved, have a financial implication that will be considered in the budgetary cycle for financial years 2024/2025 and 2025/2026. c) There is no evidence from the Petitioner that promotions and re-designations were made in a preferential manner. There is no mention of who the alleged preferred recipients of the promotions. 47.It is the Petitioner’s position that the Respondents have curtailed their right to strike by sabotaging their strike notices. The court returns that pursuant to a strike notice issued on 21st August 2023, the parties entered into a RTWF dated 4th September 2023. A further strike notice issued in March 2024, resulted in another RTWF dated 11th ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 21 | P A G E July 2024. A third strike notice dated 2nd December 2024, that gave rise to this litigation, ignited the strike that commenced on 16th December 2024. 48.There is no evidence of sabotage of the right to strike as the Respondents engaged the Petitioner in consultative negotiations to avert the strikes culminating in the RTWFs alluded to above. In any event, the members of the Petitioner exercised their right to strike and downed the tools on 16th December 2024. VI. LAWFULNESS OF THE STRIKE 49.Section 76 of the Labour Relations Act provides that – A person may participate in a strike or lockout if― (a) the trade dispute that forms the subject of the strike or lock-out concerns terms and conditions of employment or the recognition of a trade union;(b) the trade dispute is unresolved after conciliation. 50.The Petitioner exhibited the recognition agreement with the 1st Respondent dated 19th December 2017. Clause 2(b) of that agreement states that the union shall represent its members in all negotiable matters concerning all terms and conditions of employment and career progression. Clause 5 on dispute settlement states that any dispute between the parties concerning the interpretation, amendment or implementation of the agreement shall be settled amicably through consultations and negotiations. Further, in the event of failure to reach an amicable settlement on the ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 22 | P A G E interpretation, amendment or implementation of the agreement, either party may refer the dispute to the Cabinet Secretary responsible for Labour Relations in accordance with the terms of Labour Relations Act, 2007. 51.The court has found that the parties engaged in consultative meetings and the last RTWF is dated 11th July 2024. The strike notice issued on 2nd December 2024 was to take effect on or about 16th December 2024. The Respondents' position is that other trade unions had also issued strike notices, which promoted the call for a consultative meeting held on 18th December 2024. Other trade unions, such as KMPDU, KEHPHPU, KUNAD and KNUN, attended but the Petitioner snubbed the meeting. The other unions did not participate in the strike and members of the Petitioner commenced the strike on 16th December 2024 before the strike notice lapsed. 52.The court finds and holds that upon issuing a strike notice, the Petitioner was invited for conciliation and negotiation, but snubbed the invitation and the meeting. The Petitioner was obligated to report the dispute to the Cabinet Secretary in accordance with the Labour Relations Act, if it was not interested in negotiation with the Respondents and or to attend conciliation meetings. It is only after the conciliation failed that the Petitioner could issue a strike notice. The strike commenced before the negotiations were conducted and the court finds and holds that the strike was not protected. The employees ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 23 | P A G E commenced the strike prior to the lapse of the notice period and before exhausting the agreed dispute resolution procedure and the statutory conciliation mechanism provided for in the Act. 53.The employee members of the Petitioner were on strike for a protracted period of over five months. The Petitioner subsequently called off the strike and its members resumed work. 54.On whether the members are entitled to the withheld salaries and benefits, it has been held again and again that an employer pays an employee for services rendered and, logically, where no services are rendered or such services are withheld, an employer is not obliged to pay and should not be compelled to pay a salary – see Kenya Plantation & Agricultural Workers Union V Carzan Flowers (2013) KEELRC 690 (KLR). 55.The court finds and holds that the members of the Petitioner are not entitled to salary or benefits for the period they were on strike as they took part in unprotected strike. VII. RIGHT TO STRIKE 56.The Petitioner argued that its members had a right to strike, while the Respondent asserted that strikes in the essential services industry are prohibited unless the employees and trade unions put in place minimum safety measures. The Respondents pointed out that other unions in the medical industry put in place their minimum safety ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 24 | P A G E service and avoided the strike when negotiations commenced. However, members of the Petitioner went on strike paralyzing the entire health sector without putting in place minimum safety measures. 57.The court finds and holds that while Section 81 of the Labour Relations Act curtails strikes by essential service providers, such as members of the Petitioner, there should be a balance to protect the rights of workers in the essential services, including fair remuneration and fair terms and conditions of service, to avoid violation of unfair labour Practice under Article 41 of the Constitution. 58.In County Government of Machakos v Kenya Union of Clinical Officers (2024] KEELRC 13567 (KLR) the Court found and held that the right to strike in essential services is subject to the provision of agreed or prescribed minimum safety services to be provided in event of a strike and which minimum safety services are necessary to safeguard life while ensuring a balance that the strike is not rendered ineffective or useless. The Court opined that unlawful strike without ensuring minimum safety measures, threatened and actually violated the rights and freedoms of the patients. 59.It is noted that other unions called off and averted strike by their members and only the Petitioner failed to stop the strike or put any safety measures before its members went on strike. ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 25 | P A G E 60.The court is persuaded by the reasoning in the above decision and finds that while the members of the petitioner were entitled to go on strike, there was no agreed-upon minimum safety services between the Petitioner and the Respondents. There is a need for the parties to establish minimum safety service measures or an institutional framework for determining minimum safety measures between the parties in the event of a future strike. VIII. RELIEFS 61. The petitioner prayed as follows – a) A declaration that the respondents are in breach of the said members’ right to fair labour practices under Article 41 of the Constitution by unfairly refusing and/or failing to effect promotions and re-designations as provided for in PSC Human Resources Management Policies, the guidelines for transition of staff to counties published in Vol. CXVI. No. 20 of the Kenya Gazette on the 7th February 2014, Public Service Commission Human Resources Manual, 2016 and PSC Career Guidelines for Clinical Officers, May 2024. The court has found that the Respondents have effected some promotions and redesignations and have undertaken to effect promotions and redesignations subject to availability of finances. Clearly, there is no violation of right to fair labour practices. b) A declaration that the respondents, by failing to undertake ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 26 | P A G E promotions and re-designations have breached the Petitioners members’ legitimate expectation and right to fair labour practices by failing honour the terms of the Recognition Agreement dated 19th December 2017 and under the terms of the RTWFs that they have signed on 4th September 2023 and 11th July 2024. The court has found that the Respondents have effected some promotions and redesignations and have undertaken to effect the other promotions and redesignations subject to budgetary allocation. Clearly, there is no wilful refusal to implement the same. c) A declaration that the respondents, by failing to put in place a compressive medical insurance cover have breached the Petitioners members’ legitimate expectation and right to fair labour practices by failing to honour the terms of the Return-to- Work Formula dated 4th September 2023. The court has found that the Respondents have already procured a comprehensive medical scheme for its employees and hence this prayer is overtaken by events. d) A declaration that the Respondents are in breach of the Petitioners members’ right to fair labour practices under Articles 41 and 43(1)(a) of the Constitution by failing to put in place an effective medical insurance scheme for the employees as also envisaged under Section 34 of the Employment Act. This ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 27 | P A G E prayer is identical to (c) above and the court has found that the same is overtaken by events. e) A declaration that the respondents have defeated the Petitioners members’ legitimate expectation and are therefore in breach of the said members’ right to fair administrative action under Article 47 of the Constitution for failing to honour their undertakings in various agreements in respect of promotions and re-designations and medical insurance scheme. The court has found that the respondents have effected some promotions and redesignations and have undertaken to undertake promotions and redesignations subject to financial availability, and there is no refusal. Further a medical scheme has already been operationalised. f) A declaration that the Respondents are in breach of the Petitioner’s members’ right not to be discriminated upon as enshrined under Section 5 of the Employment Act and Article 27 of the Constitution by giving preferential treatment in promotions and redesignations to other employees in other cadres in the health sector at the expense of the Petitioner’s members. The court has found that no evidence of preferential treatment was availed by the Petitioner. g) A declaration that the Respondents pose a threat to the said members’ right to go on strike under Article 41(2)(d) of the ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 28 | P A G E Constitution by perpetually sabotaging strike notices issued by the Petitioner. The court has found that the right of the members of the Petitioner to go on lawful strike was not violated. 62.The petitioners prayed for judicial review order of mandamus directing the Respondents to forthwith – (i) Effect promotion and re-designations of the members of the Petitioners as provided for in Public Service Commission Human Resource Policies and Procedures Manual for the Public Service May, 2016, PSC Career Guidelines for Clinical Officers dated May 2024 and as agreed in the Recognition Agreement dated 19th December 2017 and under the terms of two RTWFs that they signed on 4th September 2023 and 11th July 2024. The Respondents have undertaken to effect all the promotions or redesignations subject to financial allocations in the FY2025/2026 budget. It shall serve no purpose for the court to order implementation of what may not be practically implemented. (ii) Procure, effect and operationalize a comprehensive medical insurance scheme for the members of the petitioner as agreed in RTWF dated 4th September 2023. The court has found that this request has been overtaken by events. (iii)A declaratory that the Petitioner and its members have a constitutional right to call for and proceed on strike on account of the Respondents’ failure to meet their mandate in law and as ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 29 | P A G E per the terms of undertakings as agreed in the Recognition Agreement dated 19th December 2017 and under the terms of the two RTWFs that they signed on 4th September 2023 and 11th July 2024 and such other and or other future agreements regarding the issues entailed in the agreements. The Court has reiterated that subject to full compliance with the law, the members of the petitioner have a right to go on strike. It is hereby emphasised that in such an event, minimum safety measures must be in place to safeguard the rights of the patients. 63.The Court hereby reminds the parties herein, all and sundry, that for harmonious and peaceful industrial relations, there is absolute need to engage in good faith. In that spirit, the Court calls upon the parties herein to engage and iron-out any pending issues. IX.ORDERS 64. For all the foregoing reasons, the court makes the following orders – a) An order of mandamus be and is hereby issued compelling the Respondents to undertake promotions and re-designations of the members of the Petitioner as provided for in Public Service Commission Human Resource Policies and Procedures Manual for the Public Service May, 2016, PSC Career Guidelines for Clinical Officers dated May 2024 and as agreed in the Recognition Agreement dated 19th December 2017 and under the terms of two RTWFs that they signed on 4th ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 30 | P A G E September 2023 and 11th July 2024. b) A declaration be and is hereby issued that the Petitioner and its members have a constitutional right to call for and proceed on strike on account of the Respondents’ failure to meet their mandate in law and as per the terms of undertakings as agreed in the Recognition Agreement dated 19th December 2017 and under the terms of the two RTWFs that they signed on 4th September 2023 and 11th July 2024 and such other and or further future agreements regarding the issues entailed in the agreements, but, subject to compliance with agreed or prescribed minimum safety services measures, in event of such a strike, and as expounded in this Judgment. c) That the strike commencing on 16th December 2024 was unprotected, and members of the Petitioner who participated in the strike are not entitled to any pay during the period of the unprotected strike. d) The Respondents shall comply with Order (a) & (b) above in 90 days of this judgment. e) Each party shall bear own costs of these proceedings. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 25th DAY OF JUNE 2026. …………………… ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 31 | P A G E DAVID NDERITU JUDGE ELRC KAKAMEGA PETITION NO. E003 OF 2025 JUDGEMENT 32 | P A G E