https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2365

Union of Kenya Civil Servants v Salaries and Remuneration Commission & 2 others (Petition E233 of 2026) [2026] KEELRC 2365 (KLR) (4 August 2026) (Ruling) Neutral citation: [2026] KEELRC 2365 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E233 of 2026 JW Keli, J August 4, 2026 IN THE MATTER OF: ARTICLES 2, 3, 10, 22, 23, 41, 47, 159, 230, 232 and 258 of the Constitution of Kenya, 2010; AND IN THE MATTER OF: Sections 11, 12 and 13 of the Salaries and Remuneration Commission Act, No. 10 of 2011; AND IN THE MATTER OF: Sections 54, 57, 59 and 60 of the Labour Relations Act, No. 14 of 2007; AND IN THE MATTER OF: The Salaries and Remuneration Commission (Remuneration and Benefits of State and Other Public Officers) Regulations, 2026 (Legal Notice No. 106 of 2026); AND IN THE MATTER OF: The actual and threatened violation of the Constitution arising from the unilateral review, approval, publication and intended implementation of a remuneration structure affecting unionisable civil servants without public participation, stakeholder engagement or collective bargaining. Between Union Of Kenya Civil Servants Petitioner and The Salaries And Remuneration Commission 1st Respondent The Cabinet Secretary, Ministry Of Public Service,Human Capital Development And Special Programmes 2nd Respondent The Honourable Attorney General 3rd Respondent Ruling 1.The petitioner is a duly registered Trade Union within the meaning of the Labour Relations Act, 2007, recognized to represent unionisable civil servants employed throughout the Public Service in the Republic of Kenya. The union was aggrieved with the issuance of the 1st Respondent’s circular dated 17th July 2026 (Ref: SRC/TS/24/1 VOL.II (64)), advising the 2nd Respondent on a revised remuneration structure for the civil service effective 1st July 2026. The petitioner filed a petition dated 21st July 2026 seeking the following relief-i.A Declaration that the process leading to the announcements of 18th and 19th July 2026 and the intended implementation of the revised remuneration structure vide circular Ref. No. SRC/TS/24/1 VOL.II (64) is unconstitutional, unlawful, and procedurally unfair for violating Articles 10, 41(5), 47, and 230 of the Constitution and the applicable statutory framework.ii.A Declaration that the impugned remuneration review and announcements vide circular Ref. No. SRC/TS/24/1 VOL.II (64) are null and void to the extent made without meaningful public participation, stakeholder engagement with the Petitioner, and a negotiated Collective Bargaining Agreement.iii.An Order of Certiorari quashing the impugned remuneration review, determinations, and announcements.iv.A declaration that any advice issued by the 1st Respondent on remuneration and benefits payable out of public funds, without compliance with the Constitution, the Labour Relations Act, the Salaries and Remuneration Commission Act, and the Salaries and Remuneration Commission (Remuneration and Benefits of State and Other Public Officers) Regulations, 2026, is unconstitutional, unlawful, null and void.v.A Conservatory Order and/or temporary injunction restraining the Respondents, their servants, agents, or any person acting under their authority from implementing, effecting, or causing to be paid the new salary scales, allowances, and remuneration structure in any Government payroll pending the hearing and final determination of this Petition or until further orders of this Honourable Court.vi.An order directing the Cabinet Secretary, State Department for Public Service and Human Capital Development, to forthwith convene the Central Negotiating Committee and engage the Petitioner in good-faith collective bargaining negotiations and meaningful stakeholder consultations on the impugned remuneration review, in accordance with the Constitution, the Labour Relations Act, 2007, and the Salaries and Remuneration Commission (Remuneration and Benefits of State and Other Public Officers) Regulations, 2026 (Legal Notice No. 106 of 2026), within such period as this Honourable Court may direct.vii.The costs of this Petition. 2.The petition was filed together with an application by way of Notice of Motion of even date filed under certificate of urgency of even date seeking the following orders-i.This Application be certified urgent and be heard ex parte in the first instance.ii.Pending the hearing and determination of this Application, a conservatory order do issue preserving the status quo obtaining immediately prior to the Respondents' announcements of 18th and 19th July, 2026 and restraining the Respondents, whether by themselves, their officers, servants, agents or any person acting under their authority, from implementing, processing through the August 2026 Government payroll, or otherwise giving effect to Circular Ref. No. SRC/TS/24/1 VOL. II (64) and the revised remuneration structure announced pursuant thereto.iii.Pending the hearing and determination of the Petition, a conservatory order do issue preserving the status quo obtaining immediately prior to the Respondents' announcements of 18th and 19th July 2026 and restraining the Respondents, whether by themselves, their officers, servants, agents or any person acting under their authority, from implementing, processing through the August 2026 Government payroll, or otherwise giving effect to Circular Ref. No. SRC/TS/24/1 VOL. II (64) and the revised remuneration structure announced pursuant thereto.iv.This Honourable Court be pleased to grant such further or other relief as it may deem fit and just in the circumstances. Grounds of the application 3.By a letter dated 20th April 2026 (Ref: UKCS/MSPS/VOL.I(163)), the Petitioner formally requested the resumption and commencement of negotiations for the 2025 – 2029 Collective Bargaining Agreement (CBA), noting that previous negotiations had remained unconcluded. 4.By a further letter dated 14th July 2026 (Ref: UKCS/MSPS/VOL.I(169)), the Petitioner transmitted its reviewed CBA proposals incorporating specific counter-proposals on basic salary, house allowance, commuter allowance, daily subsistence allowance, field security risk allowances for National Government Administrative Officers (NGAOs), and other benefits, and expressly requested the immediate re-convening of the Central Negotiating Committee (CNC) to finalise the agreement. The letters went unanswered to date. 5.To date, there is no agreed upon Collective Bargaining Agreement in force governing the remuneration and terms and conditions of service of unionisable civil servants for the 2025–2029 cycle. 6.Section 57(1) of the Labour Relations Act, 2007 requires in mandatory terms that an employer that has recognized a trade union, such as the 2nd Respondent herein, shall conclude a collective agreement with the recognized union setting out the terms and conditions of service for all unionisable employees covered by the recognition agreement. Section 59 provides that such collective agreement binds all parties to the agreement, is incorporated into the contract of employment of every individual employee covered by it, and is enforceable and implemented upon registration. 7.Notwithstanding the Petitioner’s proactive engagement and formal invocation of the collective bargaining process, the Respondents, on or about the 18th and 19th July, 2026, unilaterally announced a revised remuneration structure affecting thousands of unionisable civil servants represented by the Petitioner and indicated that the structure would be implemented through the August 2026 Government payroll, with certain adjustments taking retrospective effect from 1st July, 2026. 8.Regulations 23 and 24, read together with Regulations 3 to 8 of the Salaries and Remuneration Commission (Remuneration and Benefits of State and Other Public Officers) Regulations, 2026, being Legal Notice No. 106 of 2026, prescribe a mandatory consultative framework intended to ensure that remuneration reviews affecting public officers are undertaken in a lawful, transparent and participatory manner. More specifically, Regulation 24(3) obligates every public body that has entered into a recognition agreement with a trade union to seek the Commission's advice on remuneration and benefits payable out of public funds before commencing collective bargaining negotiations, with such advice being rendered upon consideration of the constitutional and statutory criteria set out under Regulation 7. 9.The Regulations therefore contemplate that the Commission's advisory role is to facilitate and inform collective bargaining, not to supplant, circumvent or render it otiose. There being no meaningful negotiations between the Petitioner and the 2nd Respondent, there was no basis at all for which any advice could have been sought culminating to circular Ref. No. SRC/TS/24/1 VOL.II (64). 10.The Respondents’ unilateral review, approval, announcement and intended implementation of the impugned remuneration structure, in the absence of any negotiated and concluded Collective Bargaining Agreement, fundamentally undermines the statutory framework established by the Labour Relations Act. By bypassing the Petitioner, the duly recognized collective bargaining representative of the affected unionisable civil servants, the Respondents not only frustrated the purpose for which Parliament enacted the Act but also rendered illusory the statutory protections afforded to employees in matters touching on their remuneration and terms and conditions of service. Such conduct is inconsistent with both the letter and the spirit of the Labour Relations Act and the constitutional values it was enacted to give effect to. 11.Unless this Honourable Court grants the conservatory orders sought, the Respondents will proceed to implement the impugned structure through the imminent August 2026 Government payroll, thus fundamentally and irreversibly altering the terms and conditions of employment of thousands of the Petitioner’s members before the constitutional and statutory validity of the process is determined, rendering the Petition substantially nugatory. 12.The application was supported by Affidavit of Lawrence Ochieng’ Nyaguti sworn on the 21st July 2021 who reiterated the grounds of the application and annexed a letter dated 20th April 2026 (Ref: UKCS/MSPS/VOL.I(163)), where the Petitioner formally requested the resumption and commencement of negotiations for the 2025–2029 Collective Bargaining Agreement (CBA), noting that previous negotiations had remained unconcluded (A copy of the said letter is annexed hereto and marked “LON-1”); a further letter dated 14th July 2026 (Ref: UKCS/MSPS/VOL.I(169)), where the Petitioner transmitted its reviewed CBA proposals incorporating specific counter-proposals on basic salary, house allowance, commuter allowance, daily subsistence allowance, field security risk allowances for National Government Administrative Officers (NGAOs), and other benefits, and expressly requested the immediate re-convening of the Central Negotiating Committee (CNC) to finalise the agreement (A copy of the said letter and the accompanying proposals is annexed hereto and marked “LON-2”); a copy of the impugned circular Ref. No. SRC/TS/24/1 VOL.II (64) (A true copy of the circular is hereto annexed and marked “LON-3”). The deponent stated that there was no agreed CBA to form basis of the advice vide the impugned circular. 13.The court certified the matter as urgent and issued directions for hearing the application during the recess, considering the implementation dates of the circular. 14.The 1st respondent filed a response to the application vide replying affidavit of 31st July 2026, sworn by CHRP Ali Abdullahi Surraw. In a specific answer to the union's complaint on the advice vide circular Ref. No. SRC/TS/24/1 VOL.II (64)(copy annexed and marked “LON-3’ by the petitioner) Surraw responded as follows- ‘ .a.That in exercise of its statutory mandate under Section 11(e) of the SRC Act, the Respondent, through regulation 4 of the SRC Regulations, 2013, established a four (4)-year cycle for the review of remuneration and benefits applicable across the entire public service. This four-year remuneration review cycle is aligned to the Government's 5 year planning cycle, specifically the Medium Term Plans (MTPs) and the Budget Policy Statement framework, to ensure that the fiscal implications of remuneration reviews are integrated into national economic planning and are sustainable within the projected macroeconomic environment.b.That pursuant to the foregoing, there have been 4 cycles of remuneration and benefits review in the public service as follows: the 1st remuneration and benefits review cycle which covered the financial years 2013/2014 to 2016/2017; the 2nd remuneration and benefits review cycle which covered the financial years 2017/2018 to 2020/2021; the 3rd remuneration and benefits review cycle which covered the financial years 2021/2022 to 2024/2025; and the 4th remuneration and benefits review cycle which is currently ongoing and is intended to cover the financial years 2025/2026 to 2028/2029.c.On Remuneration and benefits under the 4th remuneration and benefits review cycle- that the 4th Remuneration and Benefits Review Cycle covers the Financial Years 2025/2026 to 2028/2029 and constitutes a distinct and forward-looking policy framework separate from the previous remuneration and benefits review cycles. That prior to the commencement of the 4th Remuneration and Benefits Review Cycle, the 1st Respondent, vide letter Ref. SRC/TS/41/Vol.1(90) dated 31st May, 2025, wrote to the National Treasury seeking confirmation of the availability of funding for the review of remuneration and benefits of all public officers under the 4th Remuneration and Benefits Review Cycle.(annexed and marked as annexure "CASS-1" was copy of the letter dated 31st May, 2025). That in response thereto, the National Treasury vide letter Ref: TNT/ZZ 44/122/05 'E' (29) dated 11th July, 2025, recommended implementation of the review of remuneration and benefits for all public officers, on the following terms: a. a total funding requirement of KSh. 108.6 billion over the four-year review period; b. an annual funding requirement of KSh. 27.2 billion; and of the annual requirement, KSh. 21.8 billion attributable to the National Government and KSh. 5.3 billion attributable to County Governments. Annexed herewith and marked as annexure "CASS-2" is copy of the letter dated 11th July, 2025. That it is on the basis of the said recommendations by the National Treasury on the budgetary allocations for the review of remuneration and benefits under the 4th Remuneration and Benefits Review Cycle that the 1st Respondent subsequently advised the national and county governments on the remuneration and benefits of public officers.d.1st Respondent's advice on the remuneration and benefits for all other public officers under the 4th remuneration and benefits review cycle. That pursuant to the National Treasury's recommendations referred to in paragraph 11 above, vide letter Ref. No. SRC/TS/24/1 VOL.II (32) dated 19th December, 2025, the 1st Respondent advised the 2nd Respondent on the reviewed remuneration and benefits for the civil service in the National Government under the 1st year of the 4th Remuneration and Benefits Review Cycle, within an approved budget cost of Kshs. 2,065,701,510/-. (Annexed and marked as annexure "CASS-3" was copy of the letter dated 19th December, 2025). That with regard to unionisable staff, the 1st Respondent further advised the 2nd Respondent that the salary structure for unionisable staff be implemented through the Collective Bargaining Negotiations process. That subsequently, and following the advice already rendered by the 1st Respondent for the 1st year of the 4th Remuneration and Benefits Review Cycle, the 2nd Respondent, vide letter Ref. No. MPS&HCD/2/5 VOL.II(10) dated 1st April, 2026, requested the 1st Respondent's advice on the budgetary allocation for the 2nd year of the said Review Cycle, to facilitate the development of a proposal for the reviewed remuneration and benefits of civil servants in the National Government. Annexed and marked as annexure "CASS-4" was a copy of the dated 1st April, 2026. letter That in response thereto, the 1st Respondent, vide Letter Ref. No. SRC/TS/24/1 VOL.II (60) dated 27th April 2026, advised the 2nd Respondent to develop a proposal on the review of the basic salary structure for the civil service in the National Government, within a budget ceiling of Kshs. 2,065,701,510/- for the Financial Year 2026/2027, for consideration and advice by the 1st Respondent. Annexed herewith and marked as annexure "CASS-5" is copy of the letter dated 27th April 2026. That pursuant to the 1st Respondent's advice on the budget ceiling pleaded in paragraph 17 above, the 2nd Respondent, vide letter Ref. No. MPSP&DM/9/1 dated 22nd June, 2026, forwarded to the 1st Respondent its developed and proposed salary structure review for the civil service in the National Government under Phase II of the 4th Remuneration and Benefits Review Cycle 2025/2026 - 2028/2029, for concurrence. Annexed and marked as annexure "CASS-6" was a copy of the letter dated 22nd June, 2026. That in line with its constitutional and statutory mandate pleaded in paragraphs 3 and 4 above, the 1st Respondent duly considered the proposal within the principles set out in paragraph 5 above, and advised on the reviewed remuneration structure for the civil service in the National Government under Phase II of the 4th Remuneration and Benefits Review Cycle 2025/2026 - 2028/2029, which advice was communicated vide letter Ref. No. SRC/TS/24/1 VOL.II(64) dated 17th July, 2026.9. That once again, with regard to unionisable staff, the 1st Respondent further advised the 2nd Respondent that the salary structure for unionisable staff was implemented through the Collective Bargaining Negotiations process. That consequently, the 1st Respondent has not infringed upon the Petitioner's rights under Article 41(5) of the Constitution or the Labour Relations Act, 2007, as the 1st Respondent's advice expressly preserved and directed the Petitioner's members to the collective bargaining process, rather than displacing or circumventing it. That therefore, following receipt of the 1st Respondent's advice, the 2nd Respondent and the Petitioner are at liberty to negotiate on the remuneration and benefits of the Petitioner's members, within the parameters of the 1st Respondent's advice. That in view of the foregoing, there was, therefore, sufficient and continuous engagement between the 1st Respondent, the National Treasury, and the 2nd Respondent in determining the advised salary review, as evidenced by the sequence of correspondence pleaded in paragraphs 10 to 19 above, and the same was arrived at within the 1st Respondent's constitutional and statutory principles, and within the budgetary parameters recommended by the National Treasury. 15.The 1st respondent further opposed the grant of conservatory orders on basis of public interest, as not all civil servants who are the subject of the 1st Respondent's advice are either unionisable or members of the Petitioner. Such public servants would deprived of, or have delayed, the benefit of the reviewed remuneration structure advised by the 1st Respondent under Phase II of the 4th Remuneration and Benefits Review Cycle on account of a dispute to which they are not privy and in which they have no representation. That the public interest lies in favour of the implementation of the remuneration and benefits framework Page 6 of 8 26. 27. 28. advised by the 1st Respondent, and not in favour of the conservatory orders sought. 16.The 2nd respondent entered appearance through the State Law office and filed grounds of opposition dated 30th July 2026 as follows-a.That the Notice of Motion is misconceived, incompetent and an abuse of the court process.b.That the Applicant has failed to establish a prima facie case with a likelihood of success as required for the grant of conservatory orders under Articles 22 and 23 of the Constitution.c.That the Application raises contested questions of fact and law which can only be determined upon the hearing of the Petition on the basis of evidence and not at an interlocutory stage.d.That the Applicant has failed to demonstrate any imminent or irreparable prejudice incapable of being remedied by appropriate reliefs should the Petition ultimately succeed.e.That the Applicant has failed to demonstrate that the substratum of the Petition will be rendered nugatory in the absence of the conservatory orders sought.f.That the conservatory orders sought would have the effect of determining substantive issues in the Petition prematurely and granting the Applicant final relief at an interlocutory stage.g.That the orders sought would unjustifiably impede the lawful discharge of the constitutional and statutory mandates of the 2nd Respondents in the administration of public service and implementation of Government policy.h.That the grant of the orders sought would occasion substantial disruption to public administration, Government payroll processes and remuneration management affecting thousands of public officers, contrary to the public interest.i.That the balance of convenience and the public interest overwhelmingly militate against the grant of the conservatory orders sought.j.That the Application does not satisfy the legal principles governing the grant of conservatory orders as enunciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR and Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR.k.That the Notice of Motion is devoid of merit and ought to be dismissed with costs to the 2nd and 3rd Respondents. 17.The petitioner in response to the 1st respondent filed a further affidavit sworn by Lawrence Nyaguti Ochieng’ on the 2nd August 2026 and stated as follows from the chronology of event by the 1st respondent - the Petitioner should have been involved at the following critical points:i.Immediately after 19th December 2025, the moment the 1st Respondent itself directed that the structure for unionisable staff must be implemented through collective bargaining. At that point the recognized trade union ought to have been formally invited to commence negotiations;ii.During the period when the 2nd Respondent was developing the actual salary structure proposal (April–June 2026), so that the content of the structure affecting unionisable staff could be the product of genuine negotiation rather than a finished product presented after the fact;iii.At the very latest, before the 2nd Respondent submitted its developed proposal on 22nd June 2026 and before the 1st Respondent issued the Circular of 17th July 2026. 5. None of the above occurred. The Petitioner’s formal letters of 20th April 2026 (Ref: UKCS/MSPS/VOL.I(163)) and 14th July 2026 (Ref: UKCS/MSPS/VOL.I(169)) requesting the resumption of negotiations and transmitting reviewed proposals remained unanswered until after the Circular had been issued and public announcements made. 18.The deponent further stated that on 23rd July, 2026 the Petitioner received a letter dated 21st July 2026 from Dr. Jane Kere Imbunya, Principal Secretary, State Department for Public Service and Human Capital Development (Ref. No. MPS&HCD.2/2/7 VOL. II) (See the letter annexed herein). The petitioner contended that the timing of this letter is highly significant and must be placed in its proper chronological context:(a)The Circular Ref. No. SRC/TS/24/1 VOL.II (64) was issued on 17th July 2026;(b)The 2nd Respondent publicly announced the structure and its intended implementation through the August 2026 payroll on 18th and 19th July 2026;(c)The Petitioner filed the Petition and the Notice of Motion on 21st July 2026;(d)Only thereafter, and after the structure had already been finalised and publicly committed for payroll implementation, did the 2nd Respondent invite the Petitioner to a meeting scheduled for 29th July 2026. 8. The invitation by Dr. Jane Kere Imbunya, Principal Secretary, State Department for Public Service and Human Capital Development of 21st July 2026 does not cure the prior complete exclusion of the Petitioner. It is a classic after-the-fact invitation extended only after the unilateral process had been completed, the Circular issued, and public announcements made for imminent payroll implementation. Such an invitation cannot be characterized as meaningful consultation or collective bargaining within the meaning of Article 41(5) of the Constitution, Section 57 of the Labour Relations Act, or Regulations 23 and 24 of Legal Notice No. 106 of 2026. The letter itself acknowledges that the Petitioner had already written on 14th July 2026 requesting the reconvening of the Central Negotiating Committee. That request was ignored until after the structure had been announced for implementation. The subsequent invitation to a meeting scheduled after the filing of these proceedings does not retrospectively legitimise the unilateral process that had already been completed. 10. In any event, a meeting convened after the Circular has been issued and after public commitment has been made to implement the structure through the August 2026 payroll cannot constitute genuine collective bargaining. The parameters have already been set; the structure has already been finalized; and the implementation timeline has already been publicly declared. What remains is, at best, a discussion of how to implement a predetermined outcome, not a negotiation of the terms and conditions of service themselves. 19.The petitioner’s deponent further stated that the 1st Respondent’s own Affidavit, at Par. 14 and 19, continues to supply the most powerful admission in this case: that the salary structure for unionisable staff was to be implemented through the Collective Bargaining Negotiations process. That process never took place before the Circular was issued and the structure publicly announced for August 2026 payroll implementation. The late invitation of 21st July 2026 does not alter that fundamental fact. The prejudice remains real, imminent and irreparable. The August 2026 payroll is upon us. Once the impugned structure is processed and paid, the terms and conditions of service of thousands of unionisable civil servants will have been fundamentally altered, the structure will be embedded in the Government payroll architecture, a practical fait accompli will have been created, and the substratum of the Petition will be substantially eroded. The late invitation to a meeting does not reverse any of these consequences. The orders sought remain purely preservatory. They do not prevent the Respondents from engaging the Petitioner in genuine collective bargaining. On the contrary, they create the necessary space for such bargaining to occur lawfully and meaningfully, rather than under the shadow of a structure that has already been unilaterally finalized and publicly committed for immediate implementation. In the premises, the Notice of Motion dated 21st July 2026 remains meritorious and ought to be allowed as prayed. The late letter of 21st July 2026 does not change the legal or factual landscape; it merely confirms that the Respondents only sought to engage the Petitioner after the unilateral process had already been completed and after these proceedings had been commenced. Decision The issue for determination is whether the application had merit for issuance of orders sought 20.The parties were in agreement that the circular dated 17th July 2026 was the advice on the CBA negotiations between the petitioner and the 2nd respondent. That Regulations 23 and 24, read together with Regulations 3 to 8 of the Salaries and Remuneration Commission (Remuneration and Benefits of State and Other Public Officers) Regulations, 2026, being Legal Notice No. 106 of 2026, prescribe a mandatory consultative framework intended to ensure that remuneration reviews affecting public officers are undertaken in a lawful, transparent and participatory manner. The parties disagreed on when the advice ought to have been issued. 21.The mandate of the 1st respondent is not in dispute. The petitioner does not challenge the Salaries and Remuneration Commission (Remuneration and Benefits of State and Other Public Officers) Regulations, 2026, being Legal Notice No. 106 of 2026. I will thus proceed to outline the relevant regulations. It was not in dispute that the 1st respondent had issued the impugned advice as related to the reviewed remuneration structure for the civil service in the National Government under Phase II of the 4th Remuneration and Benefits Review Cycle 2025/2026 - 2028/2029, which advice was communicated vide letter Ref. No. SRC/TS/24/1 VOL.II(64) dated 17th July, 2026. The relevant cycle being 2026/2027 financial year. 22.Regulation 5 provides for the review cycle as follows-'5.Review cycle(1)The Commission shall review and set remuneration and benefits for State officers every four years.(2)The Commission shall review and advise on remuneration and benefits for other public officers every four years.(3)In undertaking a review under sub-regulations (1) and (2), the Commission shall—(a)assess the prevailing remuneration and benefits of State officers with a view to institute change, where necessary; or(b)assess the prevailing remuneration and benefits of other public officers for purposes of providing advice to the relevant public body on the remuneration and benefits.(4)Despite sub-regulations (1) and (2), the Commission may undertake a special review of the remuneration and benefits of State and other public officers— to address emerging circumstances.(5)In undertaking a review under this regulation, the Commission shall take into account the national budgeting and planning cycle.’’ 23.The petitioner represents unionisable civil servants, thus is under regulation 5(3)(b)- ‘(b)assess the prevailing remuneration and benefits of other public officers for purposes of providing advice to the relevant public body on the remuneration and benefits’. The impugned advice appeared to the court to have been under this regulation. Unfortunately, not all civil servants are unionisable. The advice in the letter of 17th July 2026 applied to all civil servants with a rider that the salary structure for unionisable staff be implemented through the Collective Bargaining Negotiations process. The petitioner states that by issuance of the advice, the CBA negotiations were rendered fait accompli. What I heard the union to be saying was that they ought to have been involved in the discussions after the letter of 19th December 2025 when the 1st respondent directed on the structure of unionisable staff and at the very latest before the 2nd respondent submitted its proposal dated 22nd June 2026 and before the 1st respondent issued the circular of 17th July 2026 24.Vide letter dated 1st April 2026, the 2nd respondent requested the 1st respondent to confirm the budgetary allocation for phase 11 for the review to facilitate development of a proposal for civil servants in the national government. Vide letter dated 27th April 2026, the 1st respondent communicated to the 2nd respondent the budget ceiling of Kshs.2,065,701,510 for the financial years 2026/2027 to guide review of basic salary structure for the civil service in the national government. Vide letter of 22nd June 2026 the 2nd respondent communicated to the 1st respondent that a team of inter-agency technical team comprising state department for public service and human capital, the 1st respondent, and the Public Service Commission had been constituted and prepared the phase 11 salary review for the financial year 2026/2027. In the letter, the 2nd respondent sought concurrence on the structure to be effected on 1st July 2026. The petitioner had vide letter dated 20th April 2026 to the 2nd respondent, sought the resumption of CBA negotiations for the 2025-2029 cycle. Vide letter dated 14th July 2026, the petitioner forwarded the proposed CBA to the 2nd respondent for negotiations. The 1st respondent in reference to the letter dated 22nd June 2026 gave advice on the remuneration review vide letter dated 17th July 2026(the impugned advice). 25.The following is the framework for the negotiations of the CBA in public service as per the SRC regulations of 2026-'23.Collective bargaining negotiation(1)The Commission shall, pursuant to section 11 of the Act, advise public bodies on the remunerative and benefit items payable out of public funds in collective bargaining negotiation.(2)Collective bargaining negotiation between a public body and a trade union shall cover a four-year cycle.24.Procedure for collective bargaining negotiation(1)A public body with a recognition agreement with a trade union shall seek the advice of the Commission on remuneration and benefits items payable out of public funds before the commencement of collective bargaining negotiation.(emphasis given)(2)A public body shall provide the following information required for provision of advice on collective bargaining negotiation—(a)any trade union proposals and management recommendations;(b)the public body’s financial performance;(c)the budget allocation; and(d)the approved salary structure and staff establishment.(3)The Commission shall, upon receipt of a request for advice, provide the public body with advice on the remunerative and benefits items payable out of public funds for purposes of collective bargaining negotiation, taking into account the considerations set out in regulation 7.(4)A public body shall undertake negotiation based on the advice of the Commission.(5)Upon conclusion of collective bargaining negotiation, the public body shall request the Commission in writing for concurrence on the items under Regulation 24(1).(6)Where the Commission is satisfied that the items under Regulation 24(1) are in line with its advice, the Commission shall issue concurrence in writing to facilitate registration of the collective bargaining agreement at the Employment and Labour Relations Court.’’(emphasis given) 26.In this case, it is not disputed that the CBA negotiations are not yet complete. The regulations required the 2nd respondent to seek the advice of the 1st respondent on remuneration and benefits payable from public funds before beginning collective bargaining negotiations, that is, Regulation 24(1)-‘(1)A public body with a recognition agreement with a trade union shall seek the advice of the Commission on remuneration and benefits items payable out of public funds before the commencement of collective bargaining negotiation’.(emphasis given) 27.The 2nd respondent sought for the advice from the 1st respondent, which was given via letter dated 17th July 2026, clearly stating that the salary structure for unionisable staff should be implemented through the collective bargaining process. The court finds that this advice complies with the regulations. The process in which the petitioner claims it should have been involved in was an internal employer process. The Applicant’s counsel told the court that the client is aware that the letter dated 17th July 2026 is advice as envisaged under the regulations governing CBA negotiations. The applicant relied on the decision in Kenya County Government Workers Union v Salaries and Remuneration Commission & 4 others [2024] KEELRC 2843 (KLR) where the court held- ‘An order is hereby issued declaring the advisories by the 1st Respondent (SRC) as contained in the letters dated 8th April 2022 and 19th April 2023, unlawful in so far as the SRC overstepped its mandate under Article 230(4) (b) of the Constitution and violated the Claimant’s and the 2nd Respondent’s right to engage in collective bargaining as guaranteed under Article 41(5) of the Constitution. b. The 2nd Respondent is hereby ordered to resubmit the CBA negotiated with the Claimant for consideration by the SRC within 7 days from the date of this Judgment. c. Within 30 days upon submission of the CBA, the SRC is to render its advice as envisaged under Article 230(4) (b) of the Constitution taking into account the guiding principles under Article 230(5) of the Constitution, Section 12 of the Salaries and Remuneration Commission Act and its Revised Guidelines on Collective Bargaining in the Public Service. d. In default of the SRC complying with order (c) above, the Claimant and the 2nd Respondent shall be at liberty to present the CBA to Court for registration.’ That court’s opinion in the case on the advisory by the SRC in the CBA was as follows- ‘It is my considered view that by giving the parties two options to elect, SRC was essentially limiting the avenues for negotiations between the Claimant and the 2nd Respondent. Differently expressed, the SRC did not give the Claimant and the 2nd Respondent latitude to undertake further negotiations. As crafted, the “advisories” did not constitute “advice” as envisaged under Article 230(4) (b) of the Constitution and Section 11 of the SRC Act.91.If I may say, by issuing the advisories in the manner it did, the SRC had stifled further negotiations between the parties as they only had two options to elect from. There was no further room for negotiations.92.In view of the foregoing, I cannot help but question what the Claimant and the 2nd Respondent were required to further negotiate on, whilst the SRC had already given them options which was to either adopt the remuneration and benefits structure as advised to county governments vide the circular dated 8th July 2020 or retain the remuneration and benefits structure as negotiated and registered in the existing CBA being RCA No. 21 of 2013.93.The right to engage in collective bargaining is guaranteed under Article 41(5) of the Constitution of Kenya. Therefore, in as much as the SRC is mandated under Article 230(4) (b) of the Constitution, to advise on the remuneration and benefits of public officers, such advice should be rendered in a manner that does not destroy the right of the trade union and the employer to engage in collective bargaining.94.As was rightly held in the case of Union of Water & Sewage Employees vs Mathira Water & Sanitation Company Limited and others (2013) eKLR, the Constitution did not intend that SRC takes over the collective bargaining role with respect to unionisable employees in the public sector, from employees and employers’ organizations.95.I further agree with the finding by the learned Judge that the Constitution did not intend that the right to collectively bargain, and the freedom to associate, are shackled through the creation of a Constitutional Commission.96.It is for the foregoing reason that the Constitution limited the role of SRC in the collective bargaining process in the public sector to “advisory on remuneration” rather than “setting remuneration”. The decision is not binding on this court. 28.The question before the court is what is the mandate of the 1st respondent in the pending CBA. The answer can be found in the Supreme Court decision, which had the opportunity to consider the role of the SRC in the review cycle as related to the CBA. The Supreme Court in National Hospital Insurance Fund Management Board v Kenya Union of Commercial Food and Allied Workers & another; Attorney General (Interested Party) [2025] KESC 37 (KLR) observed- ‘In addition to the 2nd respondent’s powers and functions as set out in the SRC Act which have been set out elsewhere in this decision, the SRC Regulations 2013 provide for the procedure for the submission, review and advise on the remuneration and benefits of State and public officers. Regulation 12 lists the factors to be considered when communicating advice on the remuneration of public officers. They include: legal, social, economic and environmental issues; results of job evaluation, performance, productivity and market studies; market rates from the result of comparative market surveys; CBAs; cost of employment against the organization’s capacity to pay; salary structures in the public service; equity and competitiveness among other factors. Before the 4-year-cycle review is conducted, the 2nd respondent is tasked under regulation 5 to conduct a study that will establish the labour market efficiency and dynamics; prevailing economic situation; and a comprehensive job evaluation. This study informs the basis for review. The review is then communicated to the Cabinet Secretary responsible for matters relating to finance, the Judicial Service Commission, the Parliamentary Service Commission and the National and County Governments for inclusion in the subsequent budgetary estimates. The review is then implemented by Parliament in phases depending on the budgetary allocations approved by Parliament.94.Therefore, before rendering its advice on the remuneration and allowance of public officers, the 2nd respondent is required by the law to engage in a rigorous exercise that determines the suitability of the proposed remuneration and allowances all in a bid to ensure the country’s fiscal health is sustainable. It would be absurd to have the 2nd respondent, vested with ensuring the fiscal health of our country, demoted to a mere advice-minting body.’(emphasis given) 29.As to the timing as to when the 2nd respondent was required to obtain the advice from the 1st respondent, the Supreme Court in the above decision, answered the question as follows- ‘It follows therefore, and we agree with the Court of Appeal, that the advice of the 2nd respondent was binding upon the appellant. In addition, the appellant ought to have sought the 2nd respondent’s advice before completing the CBA negotiations with the 1st respondent. It therefore follows, that any CBA entered between the appellant and the 1st respondent, absent the advice and approval of the 2nd respondent prior to entering the said CBA, was of no legal consequence.’ The 2026 regulations provide-‘ 24(1)A public body with a recognition agreement with a trade union shall seek the advice of the Commission on remuneration and benefits items payable out of public funds before the commencement of collective bargaining negotiation.’. The Supreme Court decision is binding on this court. I find that the petitioner's participation in the internal process involving the 1st and the 2nd respondents and the National Treasury before the issuance of the advice, was not required under the regulations. The advice is issued regularly in accordance with the Salaries and Remuneration Commission (Remuneration and Benefits of State and Other Public Officers) Regulations, 2026. 30.The court holds that it has no legal basis to stay the implementation of the advice. The advice applies to the entire civil service under the national government. Many other employees are affected and are waiting for the promised increments. The court found no legal basis to stay the decision. The application did not meet the threshold for grant of conservatory orders as pronounced by the Supreme Court in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) ‘“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.’’ Applying the foregoing decision, I find no merit in the order sought of a conservatory order on the inherent merit of the case, having found that the advice was in compliance with the 1st respondent’s regulations of 2026, that the advice was obtained before the commencement of the collective bargaining negotiation. The court further holds that it is not in the public interest to stay the implementation of the advice, given that it affects other public servants, not the petitioner's members. 31.The application dated 21st July 2026 is disallowed. I make no order as to costs in the spirit of promoting harmonious industrial relations among the parties. 32.It is so ordered.ObiterThe court expresses gratitude to the advocates for all parties for their promptness and diligence in filing and exchanging pleadings and documents within the short timelines set by the court. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH AUGUST, 2026.JEMIMAH KELI,JUDGEIn the Presence of:Court Assistant: OtienoPetitioner- absent1st Respondent- Ms. Jepkemei h/b Murakaru Wahome2nd and 3rd Respondents- Ms. JepkemeiPetitioner – Wangatia instructed by Rashid Law Advocates