Kenya Medical Practitioners, Pharmacists and Dentists Union v Nairobi City County Government & 2 others; Nairobi Metropolitan Services (Defunct) & 130 others (Interested Parties) (Employment and Labour Relations Cause E904 of 2023) [2024] KEELRC 403 (KLR)

The court found the circular required conversion of fixed term contracts only to enable eligibility for the Public Service Superannuation Scheme established under the Act. Section 2 of the Act confines the scheme to National Government public officers. The Claimant's members serve in the county public service, catered for under the County Governments Retirement Scheme Act. Relying on the KNUNN decision, the court held the circular did not and does not apply to them.

Under article 187(2)(b), constitutional responsibility for healthcare remained with the 1st Respondent despite temporary transfer to the National Government via the Deed of Transfer of Functions. The National Government, through the NMS, acted only as delegate. The recruitments by the 3rd Respondent were done under ostensible delegated authority under the Deed, not under its constitutional mandate under article 234, and the 2nd Respondent ratified the process by retaining the employees for the balance of their contractual tenure.

The court held that the Deed of Transfer of Functions contemplated secondment, not permanent absorption, and clause 5.7 required consultation with the 2nd Respondent on human resource matters. A circular directing absorption would exceed the 3rd Respondent's powers under article 234 and conflict with section 59 of the County Governments Act. The Handover Framework of 30th September 2022 provided for absorption only subject to vacancies and need.