https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1812

Nairobi City County Government v Kenya Medical Practitioner's Pharmacists and Dentists’ Union (KMPDU) (Petition E031 of 2025) [2026] KEELRC 1812 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1812 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E031 of 2025 JW Keli, J June 25, 2026 Between Nairobi City County Government Applicant and Kenya Medical Practitioner's Pharmacists And Dentists’ Union (Kmpdu) Respondent Ruling 1.The Applicant vide Notice of Motion application dated 28th January 2026 brought under the provisions of Section 1A, 1B, and 3A of the Civil Procedures Act; Section 78(1)(f) and 81 of the Labour Relations Act; and Article 41 of the Constitution of Kenya, and all other enabling provisions of the law, sought the following Orders:-a.This Honourable Court be pleased to issue an order suspending the Respondent’s and its members’ strike, pending the Court session scheduled for 19th February 2026 and any court orders to be issued during that court session.b.This Honourable Court be pleased to issue an order directing the Respondent’s members working for the Applicant to resume work with immediate effect, pending the court session scheduled for 19th February 2026 and the hearing and determination of this application.c.The costs of this application be provided for. 2.The Application was supported by the affidavit sworn by Tom Nyakaba on 28th January 2026, and the attachments thereto. 3.Grounds of the applicationa.The Respondent and its members moved this Honourable Court vide a Notice of Motion application dated 16th December 2025, seeking to be allowed to proceed on a protected industrial action and for the court to declare the action protected (this was prayer number 4 in their application), among other prayers.b.On 19th December 2025, this Honourable Court did not grant the orders sought by the Respondent, however, it directed that, pending an inter-parties hearing scheduled for 19th February 2026, the Applicant convene a meeting with the Respondent’s officials not later than 23rd December 2025 with a view to compromising the application dated 16th December 2025.c.Pursuant to the above court order dated 19th December 2025, the Applicant, through its officials, and the Respondent’s officials, held a meeting on 23rd December 2025 at the County Secretary’s office, Nairobi, where the issues raised by the Respondents were discussed, and the parties have been having other meetings since then.d.Despite the Court declining to allow the Respondent’s members to go on strike, and their members engaging in an essential service, the Respondent’s members have elected to proceed on an illegal and unprotected strike without retaining residual staff to provide minimum service, contrary to sections 78(1)(f) and 81 of the Labour Relations Act.e.The Respondent's action has hindered healthcare in Nairobi City County, leading to aggravation of ailments and endangering the health and well-being of residents; and is in contravention the Court’s Order dated 19th December 2025, and therefore, illegal and unprotected, as the parties have yet to conclude engaging as directed by the court. The Applicant is optimistic that with the ongoing conversation between the parties' officials, the parties will be able to agree on the issues raised before the next court date.f.Should this application be denied, the Applicant stands exposed and will suffer prejudice as the Respondent’s members will continue to cease their duties, which has effectively shut down hospitals and maternity services across the Nairobi City County, leading to an imminent crisis in essential healthcare operations, which has endangered the health and well-being of the residents who rely on the critical health services at the hospitals across Nairobi County.g.If the court does not intervene, the public who seek health services at the Applicant’s health facilities will suffer irreparable harm. 4.The application is unopposed.Decisionh.The facts in the application are not disputed. The Respondent and its members moved this Honourable Court vide a Notice of Motion application dated 16th December 2025, seeking to be allowed to proceed on a protected industrial action and for the court to declare the action protected (this was prayer number 4 in their application), among other prayers. On 19th December 2025, this Honourable Court did not grant the orders sought by the Respondent, however, it directed that, pending an inter-parties hearing scheduled for 19th February 2026, the Applicant convene a meeting with the Respondent’s officials not later than 23rd December 2025 with a view to compromising the application dated 16th December 2025. The applicant stated that the respondent union proceeded with the strike, the same being unprotected. 5.I find the issue of exercise of the right to strike in the health sector has been settled by the court. In particular, I uphold the decision by the 3 Judge Bench (Mbaru J, Abuodha J and Ndolo J) in Joseph Otieno Oruoch v Kenya Medical Practitioners Pharmacists & Dentists Union & another [2021] eKLR. The Bench looked into international law. Most relevant being the ILO standards. The Bench noted the position of the International Labour Organisation (ILO) as contained in the Digest of Decisions of the Freedom of Association Committee of the Governing Body is that the right to go on strike may be restricted or prohibited:a)In the public service only for public servants exercising authority in the name of the State; orb)In essential service in the strict sense of the term meaning, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population.The three-Judge bench held ‘’66. Looking at the right to go on strike against the right to life and applying the principles of Article 24 of the Constitution, we are persuaded that an outright prohibition of the right to go on strike for members of the 1st and 2nd Respondents would derogate from the core of that right, which in our view, is not what the Constitution contemplates.67.We are however convinced that the right to go on strike for these workers is qualified and is therefore contingent upon retention of ‘minimum service’ at the affected facilities to ensure that there is no danger to life or health of members of the public.68.In light of this, we make the following orders.a)Industrial action by health workers is not permitted unless there is a known and acceptable formula of ‘minimum service’ retention at every affected health facility. This limitation is in addition to those imposed by the conciliation procedures set by the Labour Relations Act;b)The Cabinet Secretaries in charge of Health and Labour, in conjunction with all major stakeholders within the health sector, shall within the next 12 months from the date of this judgment, develop and publish guidelines to give effect to order (a) above;c)The Registrar of the Employment and Labour Relations Court is directed to serve this judgment upon the Attorney General as well as the Cabinet Secretaries in Charge of Health and Labour.’’ 6.The respondent union proceeded on an unprotected strike, which is an illegality. The court upheld the decision in Joseph Otieno Oruoch v Kenya Medical Practitioners Pharmacists & Dentists Union & another [2021] eKLR (above) to apply in determination of the application. Consequently, this Honourable Court is pleased to issue an order directing the Respondent’s members working for the Applicant to resume work with immediate effect. The court further declares that Industrial action by health workers is not permitted unless there is a known and acceptable formula of ‘minimum service’ retention at every affected health facility. 7.I make no order as to costs in the application in the spirit of promoting harmonious labour relations between the parties. 8.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 25TH JUNE, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoPetitioner – OdenyRespondent – Washika