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ELRCPartially AllowedPetition dated 14th January 2025 (with notice of motion of even date)· [2025] KEELRC 1673 (KLR)

Kenya Union of Clinical Officers v County Government of Vihiga & another (Petition E003 of 2025) [2025] KEELRC 1673 (KLR)

Employment and Labour Relations Court
5 June 2025
3,624 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court protected striking clinical officers from discipline but ruled their county employer does not have to pay their salaries during the strike.

What this practically means

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Executive summary

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The petitioner, a trade union representing clinical officers employed by the 1st respondent county government, filed a petition on 14th January 2025 seeking declaratory orders and mandamus over promotions, re-designations and a comprehensive medical insurance scheme, alleging breaches of Articles 41, 43(1)(a), 47 and 27 of the Constitution, the Employment Act, a Recognition Agreement dated 19th December 2017 and two return-to-work formulae. Members had been on strike since November 2024. The court had issued interim orders on 21st January 2025 restraining disciplinary action. The respondents filed an application dated 23rd January 2025 seeking stay, recall or setting aside of those orders, together with a preliminary objection on locus standi, jurisdiction, exhaustion, res judicata and non-disclosure, and a further application dated 13th February 2025 seeking consolidation. The parties canvassed the three applications by written submissions. The court declined detailed analysis, holding the applications were interlocutory and risked prejudging the petition. Applying Section 80(1)(b) of the Labour Relations Act and the Carzan Flowers authority, it held that striking employees are not entitled to salaries, though payment in arrears would depend on the petition's determination of the strike's legality. The court allowed the petitioner's motion in part by restraining disciplinary action against striking members, held the respondents not obligated to pay salaries pending determination, disposed of the respondents' two applications, fast tracked the petition, renewed its call for an out-of-court settlement, and ordered costs of the applications to be in the petition. Judgment delivered at Kakamega on 5th June 2025 by David Nderitu, Judge.

Key legal issues

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01

Whether to restrain disciplinary action against striking employees pending hearing of the petition

Holding

Interim restraint granted; the respondents had also undertaken not to take disciplinary action pending determination

Reasoning

The members have been on strike since November 2024 over grievances they consider genuine, while the respondents cite budgetary constraints. The respondents undertook not to take disciplinary action pending the hearing. The court held there was nothing elaborate left to decide on the applications and the appropriate course was to maintain the status quo and fast track the petition.

p. 8
02

Whether striking employees are entitled to salaries pending determination

Holding

Respondents not obligated to pay salaries to striking members pending determination; possible payment in arrears depends on the legality of the strike

Reasoning

Relying on Section 80(1)(b) of the Labour Relations Act, the court held that an employee on strike is not entitled to payment during the strike, and under the Employment Act an employer pays for services rendered. Since no services are rendered during the strike, salaries need not be paid, but the question of arrears turns on the petition's outcome on the strike's legality.

p. 8

Legal principles established

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  • An employer is not obliged to pay salary to an employee who is on strike and renders no services
  • Whether the strike is legal or illegal is a matter for determination at the hearing of the petition and will inform whether employees may be paid in arrears

Court orders

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  1. 1.The notice of motion by the petitioner dated 14th January 2025 is allowed to the extent that the respondents, by themselves, their employees, agents, servants and or others howsoever, are restrained from taking any disciplinary action against the striking members of the petitioner pending the hearing and determination of the petition
  2. 2.The respondents are not obligated to pay salaries to the striking members of the petitioner pending the hearing and determination of the petition
  3. 3.Orders (a) and (b) dispose of the two applications by the respondents dated 23rd January 2025 and 13th February 2025 respectively
  4. 4.The petition shall be fast tracked for an early hearing and determination
  5. 5.The court reiterates its earlier call to counsel to bring both parties together for an amicable resolution of the matter
  6. 6.Costs of the three applications shall be in the petition

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 41(2)
  • Constitution of KenyaArticle 41(2)(d)
  • Constitution of KenyaArticle 43(1)(a)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 23(3)
  • Constitution of KenyaArticle 23(3)(b)(c)
  • Constitution of KenyaArticles 50(1) and 159(2)(d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 19, 23, 25 and 10
  • Employment ActSections 5 and 34
  • Labour Relations ActSections 62, 79(6), 80(1)(b) and 81
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) RulesRule 17(7)
  • Civil Procedure ActSections 7 and Order 42 Rule 6(1)

Cases cited (6)

  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Kevin Mwiti & Others v Kenya School of Law & 2 Others
    (2015) KEHC 2294 (KLR)
  • Centre for Rights Education Awareness (CREAW) & Another v Speaker of the National Assembly & 2 Others
    (2017) eKLR
  • Board of Management Uhuru Secondary School v City Director of Education & 2 Others
    (2015) KEHC 2174 (KLR)
  • Kenya Plantation & Agricultural Workers Union v Carzan Flowers
    (2013) KEELRC 690 (KLR)
  • County Government of Machakos v Kenya Union of Clinical Officers
    Machakos ELRC Petition No. E005 of 2024 (unreported)
Jurisdiction invoked
Articles 23(3) and 41 of the Constitution; Employment and Labour Relations Court Act, Section 12

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Clinical Officers v County Government of Vihiga & another (Petition E003 of 2025) [2025] KEELRC 1673 (KLR)", Case Analysis (2025). Petition dated 14th January 2025 (with notice of motion of even date). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1673/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.