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ELRCPartially AllowedConstitutional Petition No. E153 of 2024· [2026] KEELRC 2653 (KLR)

Kenya Union of Clinical Officers v Public Service Commission & others

Employment and Labour Relations Court of Kenya
25 September 2026
12,527 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~50 min to read original · ~4 min brief

The bottom line

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Kenya's employment court ruled that UHC clinical officers on rolling short-term contracts must have their employment terms regularised, with both national and county governments responsible.

What this practically means

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Executive summary

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The Kenya Union of Clinical Officers petitioned the ELRC on behalf of clinical officers recruited in 2020 under the national Universal Health Coverage programme, initially on fixed-term contracts administered through the Public Service Commission and Ministry of Health and deployed to the 47 counties. The union sought mandamus to compel transition to permanent and pensionable terms, payment of gratuities under Gazette Notice No. 8091, a declaration that the IGRTC summit deliberations of March 2023 were unconstitutional, and remittance of NSSF deductions, alleging violations of Articles 27, 41 and 47. The county respondents (Kiambu and Makueni appearing) denied employer status, contending recruitment, contracting and remuneration were national government functions, that absorption required budgetary approval, and that the Kericho Declaration and related circulars were non-binding. The SRC likewise denied an employment relationship and any power to direct county terms. The court found the facts undisputed and held that the Ministry of Health, supported by the PSC, was the actual employer in a tripartite relationship engaging both levels of government jointly and severally. Applying the Court of Appeal's decision in Kenya County Government Workers' Union v Embu County Government, it held that prolonged rolling short-term contracts were a deliberate circumvention of labour protections violating Article 41. However, the discrimination and unequal pay claims failed for want of evidence, and the gratuity, IGRTC declaration and NSSF prayers were refused for missing documentation or absence of proof of non-compliance. The court directed the interested parties to regularize the members' employment terms forthwith and file a compliance report within three months, with no order as to costs.

Key legal issues

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01

Employer-employee relationship under the UHC programme

Holding

The Ministry of Health, supported by the Public Service Commission, is the actual employer; the relationship is tripartite with the counties.

Reasoning

The facts were undisputed: the PSC recruited the officers under the Ministry of Health UHC programme, the Ministry was listed as employer in the HRIS, and implementation control remained with the national government entities. The counties received and issued contracts as directed. The court therefore held both levels of government jointly and severally responsible and rejected the PSC's attempt to evade responsibility.

p. 48
02

Whether the court can rewrite fixed-term contracts

Holding

The court cannot rewrite the contracts, but the prolonged short-term engagement amounted to an unfair labour practice under Article 41.

Reasoning

Relying on the Court of Appeal decision in Kenya County Government Workers' Union v Embu County Government, the court held that long continuous service on rolling short-term contracts entitles workers to statutory protection, and that recommending short-term contracts circumvented fair labour rights. The court adopted the Embu regularization order.

p. 49
03

Discrimination and equal pay for equal work

Holding

Not proved; the claim failed for want of evidence.

Reasoning

The petitioner asserted that UHC clinical officers were paid less than county peers with the same qualifications and roles, but placed no comparative evidence before the court. Following the Embu County Government decision, the court held that allegations and assertions must be backed by evidence, failing which no finding of discrimination under Article 27 could be made.

p. 49
04

Mandamus and separation of powers

Holding

Mandamus cannot compel budgetary appropriation or dictate the mode of performing a discretionary duty.

Reasoning

The 12th Respondent relied on Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge, where the Court of Appeal held that mandamus cannot compel performance of a duty in a specific way where the law leaves discretion as to mode. The court agreed with that submission but still issued a regularization order modelled on the Embu decision.

p. 54

Legal principles established

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  • An employer cannot retain employees under rolling short-term contracts for long periods; doing so is a deliberate circumvention of labour protections and violates Article 41.
  • Where a national programme recruits and controls workers deployed to counties, a tripartite employment relationship arises and both levels of government are jointly and severally responsible.
  • Allegations of discrimination must be backed by evidence; the burden lies on the party alleging it.

Court orders

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  1. 1.I direct and order the interested parties to regularise the petitioner's members' employment terms and conditions of service to accord with fair labour practices in accordance with the Constitution and the Employment Act forthwith and, within 3 months, file a report with the court on the progress/compliance.
  2. 2.Each party to bear its own costs in the petition.
Jurisdiction invoked
Articles 23(1) and 23(3) of the Constitution of Kenya, 2010, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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 Public Service Commission & others", Case Analysis (2026). Constitutional Petition No. E153 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2653/eng@2026-09-25

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