Moi Teaching & Referral Hospital v Kenya National Union of Nurses and Midwives & 3 others
The bottom line
#The Employment Court declined to ban nurses' strikes, ruling that a negotiated Return-to-Work Formula—not a blanket injunction—governs the hospital-union dispute.
What this practically means
#Executive summary
#Key legal issues
#Effect of the Return-to-Work Formula on the dispute
The Formula resolved the immediate dispute over withdrawal of nursing services while preserving the parties' obligations on outstanding grievances
The Formula, adopted as a court order, called off the strike and provided for resumption of duty, withheld salaries, withdrawal of suspensions and protection against victimisation, but also established processes for addressing outstanding employment concerns. Relying on Wasike v Wamboko on the contractual effect of consent orders, the court held that obligations requiring further negotiation or implementation did not end upon resumption of duty.
Entitlement to declarations and permanent injunction
All four reliefs sought were declined
The notice of 24th February 2025 was overtaken by the Return-to-Work Formula; the permanent injunction would impose a continuing restraint on distinct constitutional rights including peaceful assembly and picketing which do not necessarily involve withdrawal of services; a general ranking of the right to life above the right to strike would not resolve justification questions; and the general limitation under Article 24(1) was too broad and unjustified given the agreed framework.
Compliance with the Return-to-Work Formula
Implementation is neither wholly complete nor wholly absent; pension arrears are admitted and further verification directed
The court assessed compliance clause by clause: insurance documents did not prove the follow-up and reporting obligations; promotions evidence required verification against clause 2 and re-designation; steps towards CBA negotiations were insufficient for full compliance; pension contributions remain outstanding despite a payment arrangement; and referral of locum allowances to the Board did not complete the undertaking. A verified implementation affidavit was ordered.
Costs
Each party to bear its own costs
Exercising discretion under section 12(4) of the ELRC Act, the court took into account the circumstances in which the proceedings arose, the negotiated resumption of services, the continuing relationship between the parties and the outstanding implementation questions.
Legal principles established
#- A consent order adopted by the court has contractual effect and binds the parties, and may only be set aside on grounds justifying setting aside an agreement
- Calling off a strike under a Return-to-Work Formula does not amount to complete settlement of the underlying grievances or discharge undertakings requiring further action
- A general declaration ranking the right to life above the right to strike is not the correct analytical approach; the question is whether a particular restriction is justified in the circumstances
Court orders
#- 1.The declarations and permanent injunction sought in the petition are declined
- 2.The Return-to-Work Formula adopted as an order of the Court on 4th April 2025 remains binding upon the parties
- 3.The Petitioner shall within 60 days file and serve an updated implementation affidavit addressing the outstanding and disputed undertakings under the Return-to-Work Formula
- 4.The affidavit shall disclose the outstanding pension balance, the agreement relied upon for settlement and the applicable payment schedule
- 5.The CBA amendment process shall be separated from the rest of the items under the Return-to-Work Formula and removed from the list of outstanding items
- 6.On locum allowances, the affidavit shall distinguish payments made from matters referred to the Board and disclose any resulting decision
- 7.The Respondent is at liberty to file and serve a response within fourteen days of service, identifying the specific matters disputed and annexing supporting documents
- 8.The matter shall be mentioned thereafter for consideration of compliance and any necessary enforcement directions; either party may move the court in that regard
- 9.Each party shall bear its own costs
- Jurisdiction invoked
- Articles 22, 23, 24, 26, 37, 41(2)(d), 43(1)(a), 43(2) and 165(3)(b) of the Constitution; Employment and Labour Relations Court Act, section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moi Teaching & Referral Hospital v Kenya National Union of Nurses and Midwives & 3 others", Case Analysis (2026). Petition No. E006 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2718/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.