Kenya National Union of Nurses v Ministry of Health & another; Council of Governors & another (Interested Parties) (Cause E345 of 2024) [2025] KEELRC 2471 (KLR)
The bottom line
#Kenya's employment court ruled that UHC nurses are Ministry of Health employees and their lower pay compared to permanent nurses is unlawful discrimination.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who is the employer of the staff under the Universal Health Coverage programme?
- 2.Whether the Claimant's members have been subjected to pay discrimination
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Who is the employer of the UHC staff
The healthcare workers under the UHC programme are employees of the National Government, specifically the Ministry of Health (1st Respondent), despite contracts being issued by County Public Service Boards
Applying the four-fold, economic reality and multi-factor tests, the Court found the 1st Respondent conceptualized the recruitment, determined the remuneration, pays the salaries, controls renewal of contracts and directs the County Public Service Boards to extend contracts. The recruitment process was also outside the constitutional framework since health is a devolved function and no agreement under Section 26 of the Intergovernmental Relations Act existed.
Whether the Claimant's members have been subjected to pay discrimination
Yes - the Respondents subjected the UHC nurses to pay discrimination by failing to justify the pay disparity with counterparts on permanent and pensionable terms
It was not disputed that UHC nurses earn consolidated salaries of Kshs 50,000/- and Kshs 40,000/- without allowances, below permanent and pensionable counterparts doing the same work. Under Section 5(7) of the Employment Act the burden was on the employer to justify the disparity. The Respondents' only defence was that the nurses voluntarily agreed to the terms, which cannot displace the statutory duty to promote equal opportunity and equal remuneration for work of equal value.
Whether the Claimant is entitled to the reliefs sought
Partially - declarations, harmonization of terms and gratuity at 31% were granted; the order for joint computation of underpayment arrears was declined
The claim for computation of underpaid salaries was a specific claim requiring the Claimant to plead and prove the quantum, which it failed to do. The gratuity claim succeeded because there was no evidence gratuity was paid upon completion of the initial contracts. Damages for discrimination and mental anguish were not addressed in the final orders.
Legal principles established
#- In discrimination proceedings under Section 5 of the Employment Act, the employer bears the legal burden of proving that discrimination did not occur, and where the employer fails to justify differential treatment, discrimination exists
- Determining the true employer requires looking beyond contractual labels to tests such as the four-fold test, economic reality test and multi-factor test
- Employees' consent to less favourable contractual terms does not immunize an employer from the statutory duty to ensure fairness in remuneration
Court orders
#- 1.A declaration that the Respondents are in breach of the Claimant's members' right to fair remuneration contrary to Article 41(2)(a) of the Constitution as read with Section 5(5) of the Employment Act, ILO Convention No. 100 and Article 23 of the Universal Declaration of Human Rights
- 2.A declaration that the Respondents are in breach of the Claimant's members' right to equality and freedom from discrimination as guaranteed under Article 27(5) of the Constitution and Section 5(3) of the Employment Act by paying the staff under the UHC programme less remuneration compared to their counterparts engaged under permanent and pensionable terms of service
- 3.The Respondents are directed to harmonize and align the terms of service of staff engaged under the UHC programme to be commensurate with those applicable to the staff in the same category engaged under permanent and pensionable terms
- 4.The Respondents are directed to pay gratuity to the Claimant's members serving under the UHC programme at the rate of 31% of their respective salaries
- 5.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the ELRC
Relief refused
#Order for joint computation of the amount due to the UHC nurses on account of underpayment
It is a specific claim and the Claimant failed to prove the quantum of underpayment
Conversion of all 2,500 UHC nurses into permanent and pensionable terms / payment of underpaid salaries and allowances in arrears / damages for discrimination and mental anguish
Not included in the final orders; only declarations, harmonization of terms and gratuity were granted
Costs
Each party to bear their own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find no difficulty in concluding that at all material times, the health care workers under the UHC programme are employees of the National Government, specifically, the 1st Respondent.
As no valid reasons were advanced by the Respondents for the disparity in pay between the staff under the UHC programme and their counterparts serving on permanent and pensionable terms, it is evident that the Claimant's members have been subjected to pay discrimination.
The Respondents are hereby directed to harmonize and align the terms of service of staff engaged under the UHC programme to be commensurate with those applicable to the staff in the same category engaged under permanent and pensionable terms.
The Respondents are hereby directed to pay gratuity to the Claimant's members serving under the UHC programme at the rate of 31% of their respective salaries.
Each party to bear their own costs.
Issues in the judgment
#The citation for Communications Commission of Kenya is incomplete in the judgment
The Court's final orders do not dispose of the prayers for conversion to permanent and pensionable terms and damages for discrimination and mental anguish
Case number of the suit does not appear in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Union of Nurses v Ministry of Health & another; Council of Governors & another (Interested Parties) (Cause E345 of 2024) [2025] KEELRC 2471 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2471/eng@2025-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.