Kenya Union of Clinical Officers v Public Service Commission & others

CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT Introduction 1. The Petitioner is a registered trade union with a mandate to represent the interests of clinical officers on employment and labour relations matters pursuant to the Labour Relations Act. The petitioner commenced this suit vide an Amended Petition dated 26th May 2025 seeking:a) An order of MANDAMUS be issued directing the Ministry of Health, Council of Governors, Public Service Commission, Salaries and Remuneration Commission, and the National Treasury to immediately initiate the process of transitioning all the clinical officers currently under the UHC programme as per the circular issued by the Ministry of Health, Ref No. SDPH&PS.1/1/170 dated 2nd of April 2024 and remunerate them as per the SRC guidelines without discrimination. b) An order of MANDAMUS be issued directing the 47 Respondents and the Ministry of Health to pay gratuities for all the four-years served by the clinical officers under the Universal Health programme contract as per the gazette notice No. 8091 dated 12th October 2020. c) A DECLARATION that the deliberations made in the Intergovernmental Relations Technical Committee (IGRTC) summit on 24th of March 2023 are unconstitutional and unlawful as they violate the principle of “equal pay for equal work” and have prevented the transitioning of terms of UHC clinical officers to permanent and pensionable terms. d) An order of MANDAMUS compelling the 47 Respondents and the Ministry of Health to remit all the already deducted NSSF contribution for the UHC clinical officers. J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 2 | 57

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e) This Honourable Court be pleased to issue any other orders that it may deem fit and just to ensure that the rule of law is upheld. f) Costs of this petition. 2. The Amended Petition was filed alongside the Verifying Affidavit of ISAAC NKAPIANI sworn on 30th September 2024, with the bundle of documents in support of the Petition attached. The Petitioner later filed a Further Affidavit sworn by GEORGE M. GIBORE on 24 th June 2025 with a further bundle of documents attached. 3. In response to the Amended Petition, the 1st Interested Party filed a Response dated 25th March 2025. On their part, the 12th Respondent, Kiambu County Government, filed Grounds of Opposition dated 13th April 2026; while the 22nd Respondent, the Makueni County Government, filed a Replying Affidavit sworn by REDEMPTA KAVINDU on 22nd May 2026. The Petitioner’s case in summary 4. The Petitioner’s case is that in April 2020, a group of health workers were recruited by the Public Service Commission on behalf of the National Government under a one-year Universal Health Coverage internship contract which was meant to assist in the achievement of Universal Health Care as well as aid in the fight against COVID-19. Specifically, in June 2020, at the height of the COVID-19 pandemic, the Ministry of Health employed approximately 9,000 workers on a threeyear UHC contract at a consolidated salary of Ksh. 50,000 for Diploma Holders and Ksh. 100,000 for Degree Holders, and deployed them to different County Governments. The list per County of the Clinical Officers Serving under Universal Health Coverage (UHC) are: - J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 3 | 57

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BARINGO COUNTY 1. JOHN KIPTOO 2. ELIJAH SIRMA 3. FRIDAH SORNO 4. ALEX NGENY 5. HOSEA BARASEL 6. WILSON MABATUK 7. BETHWEL KIBET 8. SAMWEL KIPROP 9. JAMES KOECH 10. METRINE KIMOSOP 11. PATZY CHEPKETE 12. DEBORA TANUI 13. JONES LEMARKOKO 14. MARY MOROGO 15. VALENTINE YATOR 16. ROSE KORIR 17. JULIA KIPROP 18. PETER BARASA 19. HOSEA RUGUT NAIROBI COUNTY 1. MAUREEN AKOTH OLOO 2. JACQUELINE NYOKABI MUCHIRI 3. TERENCE WANJALA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 4 | 57

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4. PATRICK KINOTI MUTHUURI 5. JOAN CHEMOS 6. HARRISON G. MUCHOKI 7. DICKSON MURIGI 8. MARY KERANDI 9. PETER GICHURU WANJOHI 10. LILIAN AGANDA 11. MWITA JOEL DANIEL TANA RIVER COUNTY 1. KIAGE MEDINA KERUBO 2. MAKAMBI ANNAH BIYAKI 3. KAINGU ALFRED SAMINI 4. MUTIE VINCENT MUTUA 5. HASSAN FARAJ ABDISHEIKH 6. FURUMATA MOSES HERO 7. CHIMMEGAH CHRISTIAN SADIKI 8. AYAKO TABITHA BITUTU 9. ONTIRI ESINA NYANGARA 10. ODUGE AUSTINE ODHIAMBO 11. ASSOR EDDY HARO 12. BAHAMISH ABUBAKAR ALI 13. JILLO BRIAN BUYA 14. MASESE JOASH OMWENO 15. WADESA FATUMA TULIA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 5 | 57

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16. NGIGI SOLOMON NGOROGE 17. JACINTA KAIDZA KAHINDI 18. WAWIRE NEWTON KAKAI 19. WAMBUI ANNE NYOKABI 20. BARISA OMAR MARO 21. ANNO MARY MBUTA 22. UMURU EMILY NKANDUNGU 23. KOMORA HUNTER SAKASO 24. ELLY VIKAMBA SHIMBIRA MURANG’A COUNTY 1. GIATI BEATRICE WANJIRU 2. MUCHIRI GEOFFREY MAINA 3. KAHIRO EVERLYNE NJAMBI 4. NJARAMBA ELIZABETH WANJIRU 5. KAMANDE SAMUEL MWANGI 6. NONKEPA WINNIE NJERI 7. THUMBI WINNIE WANJIRU 8. KARANJA MARTIN MUIRURI 9. NJOROGE ESTHER WANJIRU 10. KARANJA PETER MICHUKI 11. KIBOI DORIS NYAKWEA 12. MWANGI STEPHEN KARANJA 13.THIONG’O FRANCIS MACHECHA 14. WACHIRA ESTHER NYAMBURA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 6 | 57

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15. MOI EMMA MORAA 16. MUCHOKI LOISE WAIRIMU 17. MUIGAI NAOMI NJERI 18. GOKO MARYLYNE WAHURA 19. KIHUMBA EUNICE WANJIRU 20. NDULWA BENEDICT MUTISYA 21. GOKO MARYLYNE WAHURA TAITA TAVETA COUNTY 1. MERCY KALUNDA 2. JACKLINE MCHILI 3. KELVIN MGHULO 4. NICHOLUS MBOGHO 5. JENTA MKALA 6. CHRISTINE MWASARU 7. ISABELLA MWAMBURI 8. GLADYS MWAMBURI 9. JUSTUS KANYINGINYI 10. VALENTINE NYANGE KILIFI COUNTY 1. CAROLYNE DZAME HEBA 2. DAVID TUMAINI KITSAO 3. AKIBA KALUGHO JACOB J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 7 | 57

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4. MOSES MRABU TUNE 5. ANNA KAZOSI CHENGO 6. MACKLINE KASENA THOYA 7. ROSE SYOMBUA KAMUYA 8. ABEL NZAI LWEMBE 9. FRIDA DAMA KAHINDI 10. HANNINGTON KAMOTI MWANDENGE 11. GIFT KENGA KARISA 12. JAMES NDAA KALUME 13. ERIC MUNGA KAI 14. ABDILLAHI ALI ABDALLA 15. PURITY MAPENZI HARRISON 16. AMANI NZARO DANIEL SHEHE 17. LENOX LEWA MBAGA KWALE COUNTY 1. SAMUEL CHIGUMBA NYAE 2. RAMADHAN NDURYA JOTO 3. NURU MWAMBOGA NYAUME 4. RAMADHAN HAMISI BALUNA 5. MICHAEL MRABU KOMBO 6. ATHUMAN RAJAB NGALA 7. CHARLES CHIGODI NYAE 8. MANONO ALI MWANZORI 9. MEALI ALI NYAA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 8 | 57

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10. ATHUMANI OMARI NGOE 11. MUDZO SALIM MWAMAYUGO 12. HAMISI DZERI MONGOLO 13. NASSORO RAJAB CHANJARI MERU COUNTY 1. EMILY NTONJIRA 2. BONFACE KAINGA 3. NELSON KIMATHI 4. PIUS MUNGATHIA 5. CAROLINE GATWIRI 6. LUCY KANANU 7. JUDY MUTWIRI 8. MBEERIA TIMOTHY 9. EVAH MUTHONI 10. CATHERINE GITHENDU 11. JUDITH KATHURE 12. RONNY MUTAI 13. DENNIS RIUNGU 14. MILLICENT GAKII 15. JOHN NGEERA 16. PATRICK MUTHURI 17. MUGIRA PETER 18. LUCY KANORIO J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 9 | 57

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19. SALLY KABURU 20. FRIDAH KINYA 21. MAKENA ISAAC 22. NELLY MBURUGU KITUI COUNTY 1. GABRIEL MUTINDA 2. ELIZABETH KALAU MUTAMBU 3. FRANCIS NGUMA 4. TITUS NGUI 5. ROBERT MUTUA 6. MARTIN MUIA 7. DAVID OLANDO OMUSIKOYE 8. ANDREW MUTUA 9. BRIDGET MWENDWA 10. ERIC KIOKO 11. RHODA NYAGA 12. MIKE NDAMBUKI 13. JACINTA BRAMWEL 14. LUCY IVUTI KIRINYAGA COUNTY 1. BANCY WANJIRA KARIUKI 2. MOSES MURIITHI 3. TERESA MUTHONI MURIITHI J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 10 | 57

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4. LUCY KINYUA 5. JOHN MITHAMO 6. KENNEDY KINYUA WAWERU 7. GRACE WAMBUI NDIRANGU 8. ELEMINIA WANJIKU 9. CHARLES MWANGI 10. ABDIQAFAR ISSAK 11. PHILIS MURIITHI 12. JOSHUA JUMA 13. IMMACULATE NYAWIRA MUTHIKE VIHIGA COUNTY 1. OBURA MOSES AMBWAYA 2. KIRADA CHURCHIL 3. MUKENYE IRENE 4. ODUORY EVANS OWINO 5. ABULI WILLIAM 6. MWAYI BRENDA MUHONJA 7. OTUNGA PAULINE ROSEMARY 8. NANDI SHARON KAGEHA 9. ALIONA BOAZ MUDENYU 10. ONGAYA BRILLIAN NGATI 11. OSIDE MILLYCENT OBINDI 12. MASWAJE HILDA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 11 | 57

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13. AFUNE JOHNSTONE MUHANJI WEST POKOT COUNTY 1. SHADRACK RENGETEE 2. BENSON KORINGURA 3. ELPHAS KIPTOO 4. DAMARIS CHERUTO 5. GLORIA KAKUKO 6. HILDAH CHEMASUET 7. DAVID TANUI 8. MBAKA WRIGHT 9. NELLY LOKWAKIT 10. CHIRCHIR ENOCH 11. JAIRUS RUTO 12. GRACE NGURIATUDO 13. KORLEM JOSEPH 14. JEREMIAH PKEMOI 15. FEDDY TONYIRWO UASIN GISHU COUNTY 1. JOAN LEMISO 2. NAHASHON MATELONG 3. JOHN TANUI 4. JAEL CHEPTOO 5. REUBEN LIMO J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 12 | 57

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6. CONSTANTINE JERUTO 7. KENETH METRO 8. MARION TUTTO 9. NICK LAGAT 10. ELSY JEPKOSGEI 11. JUDITH KIBOS 12. DOMINIC KEMBOI 13. EDWIN KOGO 14. ANDREW KIPTUI WAJIR COUNTY 1. MOHAMED HABASOW 2. BISHARA ALI ABEY 3. ABDI NOOR MOHAMED 4. UGAZ KASIM 5. ALI ADAN 6. MOHAMED SALAT 7. OMAR ALI NAROK COUNTY 1. DANIEL MATHENGE GICHUKI 2. ISAAC NKAPIANI 3. BOWEN LEONARD 4. LUCY MALASO 5. DANIEL SIMEL NKARABALI J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 13 | 57

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6. SOKOINE LEKURUON ALLAN 7. CHEPKORIR GEORGINA 8. MERITEI TIKANI 9. VICTOR LETUYA KIMIRINY 10. LUCY NAILATEI KOOKE 11. VALENTINE CHEPKEMOI TUM 12. BENARD KIPKORIR CHERUIYOT 13. ESHO NAMUNYAK BEATRICE 14. MURIRA ANNE WAMAITHA MARSABIT COUNTY 1. MOHAMMED GALMAGAR 2. ABDI HALKANO GODANA 3. MOHAMED ALI 4. ARBE MOLU 5. GUYO GIRO SORA 6. ROBINSON EKUMBA KASAMANI 7. BORU SORA JILLO 8. FARAH AHMED ABDI 9. AHMED GOLLO SORA 10. AMINA HUSSEIN MOHAMED 11. WOCHE WOSHE 12. GUYO JARSO MEKONA 13. ANTONY ABDUB BASHUNA 14. MOHAMED AMIN J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 14 | 57

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NYANDARUA COUNTY 1. JULIA WANGARI MAINA 2. MARY MENYI KANGATA 3. RICHARD WANDIGA WAWERU 4. EMILY WANJIKU KIMANI 5. STEPHEN KURIA GITUNDU 6. FRANCIS KIRERU 7. FARIDA KAVUTHA KITHUMBI 8. TABITHA NJERI NJOROGE 9. SALOME WANGUI NDURUNGO 10. MIRIAM WANJIKU KIRAGU 11. MIDIAN WANJIKU KAMAU 12. SAMUEL GATOTO KIHARA 13. ESTER WANJIKU NJENGA 14. JEDIDAH MUMBI MURAGE 15. JULIANA MUTHONI WANGOMBE 16. JOHN NGIGI GICHUKI 17. MARTIN MUNENE KINOTI 18. HANNAH WANJIRU NDEGWA 19. DANCAN MWAURA KARIMA 20. SAMSON KIHUGA IRUNGU NAKURU COUNTY 1. JACKLINE WANJIRA NDERITU J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 15 | 57

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2. KIBET DAISY JERUTO 3. JANET ANYANGO MUTIMBA 4. NANCY KERUBO 5. LILIAN CHEPCHIRCHIR 6. SANG MATHEW KIPKEMOI 7. RAHAB G NJOKI NJUE 8. MERCY CHERONO RUTO 9. NAOMY GATHONI KURIA 10. JAMES NJUGUNA 11. BENJAMIN KURIA 12. ROSE C. ROTICH 13. REUBEN MWIRIGI KINUTHIA 14. DOROTHY CHEMUTAI 15. NAOMI SAFARI 16. SITIENEI KENNEDY KIPKEMOI 17. DOMINIC SHIVONJE 18. CATHERINE KIMANI 19. SAMUEL NDUNGU 20. LELA CHEBET 21. FRANK LOKWAM 22. JOSEPH MUNGAI 23. CELILIA NJOKI KEFA BUSIA COUNTY 1. HUMPHREY EKAMURAN ORACHI J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 16 | 57

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2. NEWTON ALUBALA 3. BRENDA AKINYI OKOLA 4. MICHAEL HARRISON NDUDE 5. JUDITH NABWIRE 6. JUSTUS OMUSIKOYO MAKOKHA 7. LINUS OWIRE JUMA 8. KENETH KICHWANG'I ILUKU 9. TEDDY LUGENDO ADUNDO 10. GODWIN WANDERA 11. EDWIN JUMA 12. LINET WANAMBIRO 13. DUNCAN OMETA OPILI 14. BENTA NEKESA WECHULI 15. JOAN BARASA INYOKOPE BUNGOMA COUNTY 1. ALIAS SAM MTAI 2. AMBROSE MUKHOLI 3. HOLYN KIRUI 4. JOEL BWAYO 5. DAISY NZIOKA 6. CAROLYNE WENDO 7. KEVIN NYAMARI 8. CLARE BIKOKWA 9. GABRIEL WANYAMA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 17 | 57

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10. DUNCAN NYONGESA 11. BRIAN WEKESA 12. VICTORIA NJERI 13. CLAIRE WAKOLI 14. SERAPHINE MWONGULA 15. ASHTONE WANYONYI 16. GEORGEADIS MUKHAWANA 17. MATANDA BENSON 18. MARTIN NDONG'A MACHAKOS COUNTY 1. DENNIS KILONZO 2. JOHNSON MUTUA 3. FRANCIS MUTUKU 4. FAITH KIMEU 5. EDITH KALONDU 6. MAGGIE MUSYOKI 7. NAOMI MWENDE 8. VICTORIA MUNYAO 9. BRIAN MANTHI 10. DENIS OTWAL 11. VASCALYNE MWANGANGI 12. CATHERINE WAMBUA 13. JACINTA NZILANI 14. CARO NZISA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 18 | 57

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KIAMBU COUNTY 1. GLADYS MUTHONI NJOROGE 2. JOSEPH NDUNGU NJERI 3. PASCALYN WANGECHI KOINE 4. DAVID MWANGI MACHARIA 5. MARYANN WANJIRU MUTHEE 6. MBUTHIA MONICAH NJERI 7. KAMORE KELVIN THIGA 8. QUEENTER NOLLINE WASONGA 9. LILIAN NJERI KARUMBI 10. JOYCE MUTHONI WAINOI 11. SYLVIA WANJIRU NGUNJIRI 12. ZIPPORAH WAITHIRA GATUBI 13. HELLEN WANGUI KIMANI LAMU COUNTY 1. LINDA WAIRIMA WAITIKI 2. ADAN HABIBA ALI 3. NGANGA ERICK GITAU 4. CHARO NICHOLAS SHUKURU 5. AWADH IDDEH SALIM 6. NJAGI GERALD MAINA 7. WINSTONE SABWA 8. RANDU KITHI KARISA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 19 | 57

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9. OSETE BENSON LILUMBE 10. MASOUD KHADIJA ALI 11. MOHAMED ISMAIL SALIM MOMBASA COUNTY 1. RUKIA SAIDI ZUBERI 2. HABIBA MOHAMED JIMMY 3. MAXMILLA NTHENYA JIMMY 4. REUBEN MAGANDE 5. OLIVER WAFULA KISIANGANI 6. SULEIMAN BAJEBI 7. ELIJAH MWAI 8. LAURENT KISINGO THARAKA NITHI COUNTY 1. JAPHET MWENDA MUMBERE 2. ASHFORD MUNENE PETER 3. ALICE MUTHONI KAMWARA 4. EUNICE KANINI GITI 5. ISAAC MUNENE MURIUKI 6. JUDY MAKENA KAIBUNG'A 7. SHARON WAHITO WACHIRA 8. LYNN NKATHA GITONGA 9. DOLLY KARENDI MIRITI J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 20 | 57

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10. YVONNE GATWIRI GITONGA 11. KENNETH MUTWIRI MUGAMBI 12. DAMARIS KATHAMBI SAMUEL 13. BENSON MUTHENGI MUTISYA 14. ERIC MWENDA GITONGA 15. FRIDAH GAKII 16. JANET K KABIRA 17. MERCY MUTHONI MUTEGI 18. PETER MUTEMI NJOKA 19. SARAH KAGENDO MUNYUA 20. SILAS MWANIKI GITARI 21. STEPHEN MUTHURE MICHENI 22. ZACHARY GITONGA KATHUNI 23. VIOLET GATWIRI MBAKA KAKAMEGA COUNTY 1. HAJI WASICHE OMULAHA 2. DANIEL KASAMANI WANGULU 3. ADAM KAULA KANDAWALA 4. LUCY ESHUCHI ALWANG'A 5. MAUREEN NDAKALA WERE 6. GEORGE ISIAHO ROBERT 7. BRENDA KHABWANDISA ANAMI 8. PHEOBE AKOYI 9. CHRISTINE TIMINA ONGOCHE J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 21 | 57

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10. LINDAH NASIMIYU OKAVA 11. ISAIAH BAINITO 12. ROSE MAKOKHA KWEYU 13. LINUS ASHIOYA 14. JANE OTIENO ORWA 15. COLLINS AVEMBE AZENGA TURKANA COUNTY 1. FLORENCE STEPHANY AKOTH OLOO. 2. DENNIS KIPCHUMBA KIPROTICH 3. OPURA VINCENT LIKUYI 4. VINCENT KIPKEMOI SIGEI 5. CHEPKEMBOI JANIFFER 6. JOSEPHAT ORIEKO. 7. DORIS NANYAMA 8. OSCAR ADEGO. 9. WILFRED OMBUI. 10. LEAH KERUBO ONTOBO 11. BEATRICE MWALE MACHANJA 12. SHEILA KAIBEI 13. SHEILA JERONO. 14. JOYCE AKHARAN BENDERA NYAMIRA COUNTY 1. LOYCE KEMUNTOH ONYANCHA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 22 | 57

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2. RHODAH NYABOKE AMWOMA 3. DOROTHY MORAA NYAMWEYA 4. BENARD OSORO ABUYA 5. GEOFFREY O. OSORO 6. BENSON NYAMWEYA 7. KEN MASARA 8. JUSTINE MARIITA GEKE 9. JANET MORAA 10. EDNA OCHOKI 11. HARRISON OBWOCHA 12. BRENDON BUKO 13. GEORGE GWAKO 14. DOLYPHINE MON'GINA MOMANYI 15. PETER ORINA 16. RATUMO CAROLINE 17. VICTOR GESORA MAGABI 18. ALBERT MIGIRO 19. KEVIN NYABUTO 20. VICTOR MAGABI KISII COUNTY 1. NYANUSI DENFORD NYANUSI 2. KELVIN RICHARD 3. MOMANYI CALVIN 4. KENYORU PACIFICAH NYANCHOKA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 23 | 57

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5. NYAIRO ELLA NYANG'ARA 6. OMWENGA FAITH BOSIBORI 7. MANDO NATHAN ONGERI 8. KEROSI IGNATIUS MARIITA 9. KAYAGO MILLICENT MORAA 10. OMBATI ERICK M 11. MOTURI DOUGLAS ABERR 12. MOGEKE DORCAS NYARINDA 13. MOSE EDWIN OMBUI 14. OMAMBIA BONFACE BICHANG'A 15. MACHUKA VANE MOIGE "RESIGNED" 16. OMBONGI ERIC MAMWANCHA 17. OMARI ANDREW MANDERE "RESIGNED" SAMBURU COUNTY 1. LINDA LIMO 2. RONALD MURWANI 3. EBISIBA MOKEIRA 4. ELIJAH KIPTOO KIMELI 5. KIPKORIR KIRUI 6. CHERUTICH CHIRCHIR NGETUNY 7. ZAKAYO MOMANYI ONDIEKI 8. THOMAS LENANGARIMA 9. PATRICIA NYAWIRA 10. LEMETEKI JAMES J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 24 | 57

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11. BRUNO SAMMY KAIMENYI 12. PETER WASWA 13. SYLVESTER MUREI BOMET COUNTY 1. BENINA CHEPKOECH 2. BII SIMION KIBET 3. ABRAHAM KIPRONO BENGAT 4. KOECH KIPKORIR 5. ECITY CHEPKOECH 6. CHEPKOECH KORIR 7. MISPER CHERONO 8. CHEPNGENO LILIAN KOECH 9. MUTAI KIPKEMOI GEOFFREY 10. PERIS CHEPKEMOI 11. WALTER CHERUIYOT 12. CHEPKOECH MERCY 13. CHARLES KIPNGETICH BETT 14. JESSICA CHEPKEMOI 15. DORIS CHEROTICH 16. BETTY CHEPKORIR MITEI MIGORI COUNTY 1. MAROA JOSHUA MOSETI 2. PRESTOLINE ANYANGO OTIENO J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 25 | 57

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3. PAMELA NYAGA 4. EVERLYNE AWUOR 5. EMILY WAFULA 6. ORAGO VICTOR 7. KENNEDY OCHIENG 8. JOSEPH OBIMBO 9. WAMBURA CALEB PAUL 10. RUTH MADO 11. CHARLES MATIKO MASAITE. 12. KEVIN NDISIO 13. ROBERT CHACHA 14. ALLAN ODHIAMBO 15. HANINGTON OGALO 16. WYCLIFFE OMONDI 17. GEOFREY MBOGO KERICHO COUNTY 1. KEMBOI HILLARY 2. LOICE CHEBET 3. FANCY CHELANGAT 4. GEOFFREY KIPKEMOI 5. HOSEA MUTAI 6. MIKE KIPKORIR KIRUI 7. DENIS RUTO 8. HAWKINS ALINGO J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 26 | 57

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9. RONALD KIMUTAI ELGEYO MARAKWET COUNTY 1. FELIX NGETICH 2. JUSTUS KEMBOI 3. DAVID KIBOR 4. KORIR BENARD 5. PATRICK KIGEN 6. HENRY CHEBII 7. SILAS KIRWA 8. MAURINE CHESIR 9. LYDIA J KULEI 10. TIMOTHY KIMAIYO 11. NANCY KIPTOO 12. ROBERT KIPROP 13. LILIAN BIWOTT 14. EVANS RUTO 15. ERUSTUS KOECH 16. GILBERT KIPRONO 17. ANNALYNE KIBET 18. MATHEW KOSGEI KISUMU COUNTY 1. SHARON AKINYI NYAORO 2. BRIAN ONYANGO MBOYA J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 27 | 57

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3. PETER OUMA ABUTO 4. ADRIANNE WINNIE 5. JACK OWUOR OTIENO 6. JESCA AKINYI OWINO 7. SYLVIA ATIENO OTIENO 8. TEREZAH OTIENO 9. DIANA OKETCH 10. ABWAO WICKLIFFE 11. VICTOR OKUL 12. OKELLO DENNIS OUMA 13. CORRINE OPOT AKOTH 14. GEOFREY ODIYO AGIE 15. VINCENT OTIENO OUKO 16. DIBORAH ANYANGO OYOO 17. NGESA GEORGE MICHAEL 18. OCHINGA GODFREY OCHIENG 19. EMMANUEL IMANY OKUTA 20. KELVIN ONGINJO OCHIENG 21. BEATRICE AUMA OCHIENG NYERI COUNTY 1. ZIPPORAH WANGUI THUA. 2. BEVERLYN NDUTA VERAH 3. PETER MARUNGO MAINA 4. ELIZABETH WANJIRU NDIRANGU J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 28 | 57

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5. CAROLINE WANJIRU GIKUNJU 6. JOYCE WANGECI GITONGA 7. MARY WANJIKU MUTURI 8. JAMES WACHIHI NDIRANGU 9. PAUL WAHOME MWANGI 10. CATHERINE WANGARI WATURU 11. JACQUELINE WAWIRA GICHOVI 12. REBECCA WANGUI MUTHUI 13. CHRISTINE WANJIRU NDIRANGU 14. NEWTON MUTIGA GIKIRI 15. ROSE WANJIRU NJOROGE 16. JOYCE WANGUI MAINA 17. ANNE WANGECI GATHONGO 18. MORIS WERU KAGIA BARINGO COUNTY 1. JOHN KIPTOO 2. ELIJAH SIRMA 3. FRIDAH SORNO 4. ALEX NGENY 5. HOSEA BARASEL 6. WILSON MABATUK 7. BETHWEL KIBET 8. SAMWEL KIPROP 9. JAMES KOECH J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 29 | 57

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10. METRINE KIMOSOP 11. PATZI CHEPKETE 12. DEBORA TANUI 13. JONES LEMARKOKO 14. MARY MOROGO 15. VALENTINE YATOR 16. ROSE KORIR 17. JULIA KIPROP LAIKIPIA COUNTY 1. OBONGO EVELYN 2. GIVONDO SAMUEL 3. GITHONGO PATRICIA 4. MUTHEE RACHEL 5. EUNICE KIRWA 6. MWONGERA JACKLINE 7. BUNDOTICH KIPROTICH 8. MACHARIA PETER 9. RITA MUTHIORA 10. MBURU ERASTUS 11. KIBE PATRICK 12. MWANU PURITY 13. NJERI DAMARIS 14. KIMANI EARNEST 15. GUYO SALAD J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 30 | 57

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16. GACUGA ANTHONY 17. ELAMAN EMANUEL TRANS-NZOIA COUNTY 1. FRED SIMIYU WAFULA 2. DIANA MUTHONI KITIYO 3. ERIC NGEYWO 4. EDWIN MARANGO 5. EZEKIEL MASIKA WESONGA 6. SAMUEL WANYOIKE 7. ANDREW WANJEKEJE WANYONYI 8. EVELYNE ACHIENG 9. VIVIANNE W WAMBOI 10. TIMOTHY DALIZU MULWEYE 11. COLLINS SIMIYU WANYONYI KAJIADO COUNTY\ 1. DAVID NJOROGE WAINAINA 2. PATRICK MWANGI WANGECI 3. DAVID MWENDA MUTHAMIA 5. It is averred that the recruited UHC Clinical Officers were seconded by the Public Service Board and the Ministry of Health to various counties to work alongside the county clinical officers employed under the various county public service boards, while some were posted to national health facilities. Once the contracts expired in May and June 2023, the Ministry of Health J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 31 | 57

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renewed the UHC clinical officers’ contracts for a further one year upon the advisory by the Public Service Board, and with the understanding that after the same expired in May and June 2024, the clinical officers would be absorbed at by the county public service boards on permanent and pensionable basis. 6. It is stated that on 10th-12th February 2023, the 112th Ordinary Session of the National and County Government Coordination Summit sitting in Naivasha passed Resolution 23 for the Ministry of Health to extend the contracts of UHC staff for a further period of three years under the same terms and conditions, and issued a press release to that effect. The staff are aggrieved by this development as they had a legitimate expectation that their contract employment would be converted to employment on permanent and pensionable terms, or their remuneration adjusted to the same rate as their peers who work under the same conditions. Notably, the UHC clinical officers earn less than half of what their peers earn working in the same environment. The Grievants categorise the Resolution of the Inter-Governmental Summit as not only unfair by dint of law but also unethical. 7. Since then, various stakeholders in the health sector have held talks to ensure that there would be smooth uptake of the UHC clinical officers by the county public service boards upon the expiration of the 1-year contract in May and June 2024 as follows: a) On 12th October 2023 the Senate standing committee on labour and social Welfare issued a report to recommend the absorption of UHC Clinical Officers into permanent and pensionable terms. b) On 18th October 2023, the Ministry of Health and the Council of Governors (CoG) signed the Kericho Declaration where by it was agreed that the CoG and the Ministry of Health would J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 32 | 57

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facilitate absorption and mainstreaming of the national government contract staff (including the UHC Clinical Officers) and CoG to develop a clear plan for absorbing other contract staff. c) The Ministry of Health drafted a circular Ref No. SDPH&PS.1/1/170 dated 2 nd April 2024 requesting for the approval of the Public Service Commission to transition the UHC Clinical Officers to permanent terms in their respective counties. d) That the Council of governors in a circular Ref: COG/6/40/3A Vol. 3(27) dated 4 th April 2024 instructed all governors and their respective county public service boards to submit data of all the UHC Clinical Officers in the County Governments health facilities, a task which was done. e) The UHC clinical officers signed physical contract letters with their respective county public service boards specifying that their contracts extend to May and June 2026. 8. Unfortunately, in May and June 2024, the UHC clinical officers learned that the county governments had failed to absorb them as county clinical officers with the various county public service boards under permanent and pensionable terms. In the government's Human Resource Information System, the Ministry of Health is listed as the UHC clinical officers’ employer and the ROD reads May and June 2024. The contracts that the UHC clinical officers had signed with the county public service boards during the negotiations by stakeholders were withheld by some counties without explanation with the physical copies of their contracts failing to be provided. 9. The Petitioner argues that while the UHC clinical officers have been employed on contractual terms under the PSC and the Ministry of Health, they have been delivering critical healthcare services countrywide for their entire contractual period. Further, they have the same qualifications, work in the same conditions and take up similar roles as their county counterparts but are still paid less and have fewer allowances owing to the fact that they are yet to be placed J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 33 | 57

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under permanent and pensionable terms by the county public service boards. To aggravate matters further, some of the UHC clinical officers have had to take on extra responsibilities, including overseeing health facilities, particularly in counties that are understaffed. Throughout the four years under the UHC contracts, the salaries of UHC clinical officers have consistently been subjected to all salary deductions without any increase or additional allowances, including for those working in hardship areas. 10. It is stated that the actions of the Respondents are not warranted as the Ministry of Health has already initiated the process for this transition, and it is essential for promoting fairness, equality, and employee welfare. There have also been advertisements published by the Respondents for health jobs on permanent terms while deliberately failing to consider the UHC clinical officers who had legitimate expectations that their employment terms would be converted to permanent and pensionable, or their remuneration increased to match their peers. 11. The Petitioner’s case is that the failure of county public service boards to absorb the UHC clinical officers into their labour force is an infringement of their right to fair labour practices under Article 41 of the Constitution, has violated the principle of “equal work equal pay’’, has been discriminatory contrary to Article 27 of the Constitution, and amounts to an illegality as it predisposes the UHC clinical officers to successive employment contracts for the last 4 years which is against Kenyan employment law. Additionally, it violates the Public Service Commission (PSC) Act which outlines requirements for the engagement and renewal of contracts, emphasizing equal treatment and non-discrimination. 12. In a joint sitting with the departmental committee on Health of the National Assembly and the Senate to deliberate on the nationwide strike that was convened on 2nd of May 2024, the J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 34 | 57

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chairman to the Public Service Commission announced that there shall be a further extension of contract for the UHC staff for further two years, making it six years under same terms and conditions. Respondents’ case in brief 12th Respondent 13. The 12th Respondent opposes the Amended Petition on the premise that the Petitioner has failed to prove the existence of an employer-employee relationship between it and the Grievants. They aver that the initial engagement, recruitment, contracting and secondment were carried out by the Public Service Commission and the Ministry of Health on behalf of the National Government, not by Kiambu County Government. They point out that the contracts referred to by the Petitioner were entered into between the UHC Clinical Officers and the Public Service Commission, with the Ministry of Health as the executing agency, and Kiambu County Government was never a party to those contracts. They emphasize that the Petitioner has not produced any subsequent physical contracts entered into by the Grievants and the Kiambu County Public Service Board and the Petitioner, and any such contracts, even if they existed would have exceeded the Board's mandate and lacked the requisite budgetary allocation and approval by Kiambu County Assembly. 14. The 12th Respondent denies that they have violated any of the Grievants Constitutional rights as alleged and complain that the allegations of contravention of rights are generalized without unique factual basis attributable to the 12th Respondent. They, in particular, deny discriminating against any clinical officer, and explain that the terms of engagement for county-employed clinical officers on permanent and pensionable terms are governed by the Kiambu County Public J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 35 | 57

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Service Board Human Resource Policies, SRC guidelines and available budgetary resources all of which differ fundamentally from the National Government’s contractual terms. It is stated that the principle of "equal pay for equal work" does not apply between employees of different employers (National Government vs. County Government) working under different legal and remuneration frameworks approved by SRC. 15. Further, the 12th Respondent denies that the Grievants hold any legitimate expectation in relation to employment by them as no express promise, representation or statutory provision binds Kiambu County Government to absorb National Government’s contract staff. They categorize the Kericho Declaration, Senate Committee report, Ministry of Health circular and COG circulars, which are referred to by the Petitioner, as policy recommendations and non-binding instruments which do not create enforceable legal rights or legitimate expectations against an individual county government. Additionally, they clarify that the Intergovernmental Summit resolution of February 2023 recommended a three-year extension of contracts and not permanent absorption as purported by the Petitioner. 16. According to the 12th Respondent, some challenges which would face it in respect of absorption of UHC Clinical Officers onto permanent and pensionable terms are that: such absorption would require budgetary allocation and approval by the Kiambu County Assembly under Article 174 and 176 of the Constitution and the Public Finance Management Act; the estimated cost of absorption (Kshs. 10.3 Billion annually) would impose an unbudgeted, unfunded mandate upon Kiambu County Government, contravening Article 6(2) which requires intergovernmental consultation and financial sustainability; and any transition of contract staff to permanent terms must comply with the Public Service Commission (PSC) approval and County Public Service Board Rules and Regulations, which have not been exhausted or satisfied in this case. It is J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 36 | 57

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averred that the Court cannot compel the 47 County Governments to appropriate funds without violating the principle of separation of powers. 17. The 12th Respondent objects to the Petitioner’s failure to exhaust administrative remedies under the Fair Administrative Actions Act or Employment Act prior to filing the instant Petition; and states that they have framed ordinary employment claims (absorption, conversion to permanent terms, gratuity, allowances et al) as constitutional violations. The 12th Respondent denies having withheld physical copies of any signed employment contracts between it and the Grievants from them and categorically states that no valid, approved and budgeted contracts for permanent absorption were ever executed by the Kiambu County Public Service Board in favour of the named individuals. 18. The 12th Respondent, in conclusion, prays for dismissal of the Amended Petition against it stating that it is an abuse of the constitutional court process that seeks to compel 47 diverse County Governments to take uniform action without regard to their individual fiscal positions, staffing norms and legal obligations. 22nd Respondent 19. The 22nd Respondent takes a similar stance to the 12 th Respondent, and states that the Universal Health Coverage (UHC) Programme was conceived, initiated, financed and coordinated by the National Government through the Ministry of Health and the Public Service Commission and not by it or the Makueni County Public Service Board. The recruitment process for the UHC staff was centrally undertaken by the Public Service Commission under the Ministry of Health as evidenced by the public advertisements inviting applications for various positions under the UHC Programme, and the terms and conditions of engagement, remuneration, deployment and renewal J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 37 | 57

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of contracts for the UHC staff were similarly determined by the National Government and communicated to County Governments and County Public Service Boards for implementation and administrative coordination. They therefore argue that their role was limited to facilitating administrative implementation and coordination at the County level upon deployment of the UHC staff to health facilities within Makueni County. 20. Subsequently, after expiry of the initial contracts, the Council of Governors and the Ministry of Health advised County Public Service Boards to commence the process of renewal of the UHC contracts for a further period of three (3) years. Pursuant to the said communication and directives, the Makueni County Public Service Board processed and facilitated renewal of contracts for the affected UHC staff stationed within Makueni County. Vide a letter dated 26 th July 2023, the Board forwarded renewed UHC contracts and issued a status report regarding the affected officers including those with disciplinary and licensing concerns. Thereafter, through another letter dated 16th August 2025 addressed to the Principal Secretary, State Department for Medical Services, the Makueni County Public Service Board expressly supported the conversion of UHC staff on contractual terms to permanent and pensionable terms, due to the need for competitive human resource management. They requested an update on progress on the Ministry of Health side regarding the transition of the affected UHC staff into permanent and pensionable terms. 21. It is therefore the 22nd Respondent’s case that they and the Makueni County Public Service Board have lawfully in relation to the officers serving under the UHC Programme within Makueni County. They state that no violation of constitutional rights attributable solely and directly to the 22nd Respondent and the Makueni County Public Service Board has been demonstrated. It is averred that the issues raised in the Petition regarding remuneration, contractual terms, budgetary J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 38 | 57

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allocation and policy direction concerning the UHC Programme substantially fall within the mandate of the National Government, Ministry of Health, Public Service Commission and other intergovernmental bodies involved in the Programme. 1st Interested Party 22. The 1st Interested Party avers that there is no employer employee relationship between it and the Petitioner's members, hence the issue of discrimination by the employer is denied. The 1 st Interested Party also opposes the claim of discrimination against the Petitioner’s members on the premise that no evidence has been adduced showing that a different group of health workers were treated differentially and favourably. They also deny that the Petitioner’s members were seconded from one level of government to the other. 23. The 1st Interested Party explains that the Petitioners members were employees of various County Governments having been interviewed by the respective County Public Service Boards and issued with appointment letters initially under fixed term contracts of three years, as admitted in the Petition. They argue that at the time of employment of the clinical officers, they were aware of the duration and the remuneration attached to their contracts, and elected to accept them. They cannot turn around and demand alteration of the terms of the contract during the subsistence thereof. 24. On the alleged failure by the 1st Interested Party to factor in the Scheme of Service for health workers as approved by the Commission itself, in determining the Grievants’ terms of employment, the 1st Interested Party states that although the advertisement was published centrally by the Commission, the applicants were intended to be employed by the county governments, who are not obligated to adopt the policies issued by the Commission in respect of the national government institutions falling under its mandate. The legislation that applies to J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 39 | 57

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county government employees is the County Governments Act 2012 and not the Public Service Commission Act 2017. 25. On the purported legitimate expectation held by the Grievants that their employment would be converted to permanent and pensionable and/or their remuneration enhanced, the 1 st Interested Party avers that there is no basis giving rise to such legitimate expectation, as the legal threshold for a finding of legitimate expectation has not been met. Specifically, since the Petitioner's members are employees of the various county governments, the respective County Public Service Boards, and not the 1st Interested Party, are competent to make a promise capable of being interpreted as creating legitimate expectation. 26. The 1st Interested Party emphasizes that they are responsible for making appointments at the national government level and any attempt to make pronouncements relating to appointments at the county level would be unconstitutional. Further, the Interested Parties cannot direct the translation of terms of officers in the County Government Public Service. For absorption to happen, the respective county governments, through their County Public Service Boards must agree after assessing the employees’ capacity. Notably, health is a devolved function, with Universal Health Care nurses serving in county health facilities. 27. On the prayers sought, the 1st Interested Party opposes the grant of the prayer for payment of the underpaid salaries and allowances as per gazette notice number 8091 dated 12th October 2020, as the specific amounts due have not been computed. They also oppose the prayer for payment of gratuity as the same is not supported by documentation. J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 40 | 57

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28. In support of its case, the 1st Interested Party relies on Article 2(2) of the Constitution which provides that no person may claim or exercise statutory authority except as authorized under the Constitution; Article 6(2) which provides that the governments at the national and county levels are distinct and interdependent; Article 189 on Government at either level performing its functions and exercising its powers in a manner that respects the functional and institutional integrity of government at the other level; Article 233 which establishes the Public Service Commission and Article 234 which sets out its mandate; Article 235 of the constitution which sets out the mandate of County Governments, including to establish and abolish offices in its public service and appoint persons to hold or act in those offices; and Paragraphs 23 and 28 of part one of the Fourth Schedule which provide that the national government will be responsible for the national referral facilities and the health policy respectively, and paragraph 2 of part two which provides that the county governments are responsible for the county health facilities. They also rely on Sections 7 and 8 of the Intergovernmental Technical Relations Act which provides for establishment of a National and County Government Co-ordinating Summit and its functions; as well as Sections 57 and 58 of the County Governments Act 2012 which establish the County Public Service Board and set out its powers and functions. The 3rd Interested Party 29. The 3rd Interested Party filed a replying affidavit through its Chief Executive Officer, Mary Mwiti, sworn on the 10th December 2024. Its response was as follows- 30. The 3rd interested party is an Intergovernmental Relations Body established under Section 19 of the Intergovernmental Relations Act No. 2 of 2012. It comprises of the 47 County Governors whose functions as set out under Section 20 of the Act are to inter-alia provide a forum for, J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 41 | 57

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among others: consultation amongst County Governments; and considering matters of common interest to the County Governments. 31. Pursuant to its mandate hereinabove, the 3rd interested party coordinates the 47 County Governments on matters of common interest with regard to implementation of devolution. The Council also provides the linkage and synergy between the Counties and National Government, development partners and International organizations on matters of common interest. 32. The 3rd Respondent is not an employer to the Petitioner/Applicant's members in line with the provisions of the Employment Act or any other law. The prayers as framed cannot issue as against the 3rd interested party in light of the following: a) There exists no employment relationship between the Petitioner/Applicant and the 3rd Respondent. b) The 3rd interested party does not have a County Public Service Board that is mandated in law to appoint members of the applicant. c) There exists no contractual relationship between members of the Petitioner/Applicant and 3rd interested party to warrant issuance of the orders sought in the Application 33. Ms Mwiti averred on without prejudice basis as follows- 34. That with the promulgation of the 2010 Constitution, devolution was introduced in a bid to promote good governance and enhance effective exercise of the people's sovereign power at both the County and National levels of the government. Article 174 of the Constitution of Kenya 2010 provides inter alia for the objects of devolution. J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 42 | 57

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35. Under Article 186(1) as read together with section 2 Part 2 of the Fourth Schedule of the Constitution, the function of provision of healthcare services is devolved to County Governments. The National Government is assigned the role of health policy and providing services at national referral health facilities. 36. The above notwithstanding, at the height of the COVID-19 pandemic in 2020, the 1st Respondent (1st interested party under amended petition) advertised health worker positions as part of the efforts to complement the workforce on the battlefront against coronavirus. Consequently, the qualified candidates were asked in the advertisement to make their applications online through the 1st interested party website, indicating the counties where they wish to serve. 37. The applicant's members engaged under the 2nd Respondent's (2 nd interested party under amended petition) Universal Health Coverage Programme were appointed for a three-year fixed term contract which was to automatically expire by effluxion of time in May 2023. That it was a term at the inception of the programme that the applicant's members be supervised and managed by the respective county governments but their payroll be managed by the 2nd Respondent (2 nd interested party under amended petition) , subject to statutory deductions, a fact that initially did not sit well with the 3rd Respondent(3 rd interested party under amended petition) as this offends the functional and institutional integrity of county governments. 38. Article 235 of the Constitution provides that a county government is responsible for establishing and staffing its public service. To operationalise Article 235 of the Constitution, Section 57 of the County Governments Act, Cap 265, establishes a county public service board for every county government, which is responsible for managing human resources, including appointing the J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 43 | 57

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members of the board. In order for the programme to be effectively conducted, the County Governments ought to have been given the resources to effectively undertake the function. 39. That fixed-term contracts, which the applicant's members voluntarily agreed to carry, carry no rights, obligations or expectation beyond the date of expiry of the contract. Article 6(2) of the Constitution provides that the governments at the national and county levels are distinct and interdependent and shall conduct their mutual relations on the basis of consultation and cooperation. It is on this basis that the Intergovernmental Relations Act, Cap 265F of the laws of Kenya, established the National and County Government Co-ordinating Summit as the apex body for intergovernmental relations. The Summit comprises the President, the Deputy President and the governors of the forty-seven counties. 40. Section 8 of the Intergovernmental Relations Act, Cap 265F of the Laws of Kenya, provides that the Summit shall, among other things, provide a forum for consultation and co-operation between the national and county governments. 41. That aware that the contracts of the Ministry of Health Universal Health Coverage staff were coming to an end, the Summit convened on 12th February 2023 to discuss inter alia issues pertaining to the applicant's members engaged under the Ministry of Health Universal Health Coverage programme. Consequently, the summit resolved that all contracts of clinical officers under the programme be extended for another three years under same terms and conditions. 42. In light of the Summit resolution dated 12th February 2023, the 3rd Respondent (3 rd interested party under amended petition) conveyed the resolution of the summit held on 12th February 2023 to the 2nd Respondent (2nd interested party under amended petition) and the National Treasury, J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 44 | 57

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urging the aforesaid stakeholders to extend the contracts of the claimant's members for another three years under the same terms and conditions and to allocate adequate budget for the same. 43. However, the 1st Respondent (1st interested party under amended petition) renewed the contracts of members of the applicant for one year. The county governments are cognizant of the essential role that clinical officers employed under Ministry of Health Coverage play in promoting healthcare services in county facilities and have progressively employed the said staff within their staffing establishments whenever vacancies arise. Further, the advertisements issued by the counties do not bar the members of the applicant from applying the advertised positions. As a matter of fact, some members of the applicant have successfully applied and secured the positions advertised by the County Public Service Board. DETERMINATION 44. Following directions by the court that it would determine the Petition through written submissions, the Petitioner, 12th Respondent, and 1st and 3rd Interested Parties filed their respective submissions. Issues for determination 45. The Petitioner distilled the following issues for determination in their submissions dated 12 th January 2026: i. Whether the Respondents violated the right to fair labour practices under Article 41 of the Constitution and national labour standards. ii. Whether the Respondents’ actions violated the principle of equality and nondiscrimination under Article 27 of the Constitution. J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 45 | 57

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iii. Whether the Respondents’ actions breached the Petitioner’s right to fair administrative action under Article 47 of the Constitution. iv. Whether the Petitioner is entitled to the reliefs sought. v. Whether the Respondents violated the right to fair labour practices under Article 41 of the Constitution and national labour standards. 46. The 12th Respondent filed submissions dated 13th April 2026, where they submitted generally on the Petition. 47. On their part, the 1st Interested Party also submitted generally on the Petition in their submissions dated 12th February 2026. 48. The 3rd Interested Party, in their submissions dated 17 th July 2026, identified the following issues for determination, namely: i. Whether the recruitment process of the members of the Petitioner engaged under the Ministry of Health Universal Coverage was constitutionally flawed. ii. Whether there exists an employer-employee relationship between members of the Petitioner engaged under the Ministry of Health Universal Health Coverage Programme and the Respondents. iii. Whether the Honourable Court can rewrite the fixed term contracts of the members of the Petitioner engaged under the Ministry of Health Coverage Programme. 49. The court finds that the parties are in agreement on issues for determination which the court concluded were as follows- J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 46 | 57

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a. Whether there exists an employer-employee relationship between members of the Petitioner engaged under the Ministry of Health Universal Health Coverage Programme and the Respondents. b. Whether the Honourable Court can rewrite the fixed term contracts of the members of the Petitioner engaged under the Ministry of Health Coverage Programme. c. Whether the Respondents violated the right to fair labour practices under Article 41 of the Constitution and national labour standards. d. Whether the Respondents’ actions violated the principle of equality and nondiscrimination under Article 27 of the Constitution. e. Whether the Respondents/interested parties’ actions breached the Petitioner’s right to fair administrative action under Article 47 of the Constitution. f. Whether the Petitioner is entitled to the relief sought. Whether there exists an employer-employee relationship between members of the Petitioner engaged under the Ministry of Health Universal Health Coverage Programme and the Respondents. 50. The court finds that the facts of the case are not in dispute. What is in dispute is who is responsible for the terms of employment and engagement of the members of the Petitioner. 51. It was apparent from the facts before the court that the 1st interested party recruited the members of the petitioner under the Ministry of Health Universal Health Coverage Programme, and the members were deployed to serve in the counties under terms stipulated by the 1 st and 2nd interested parties. The petitioner admitted in the pleadings that, in the Government Human Resource Information System, the Ministry of Health is listed as the UHC clinical officer’s employer. The 1st interested party's attempt to evade responsibility for employing the clinical J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 47 | 57

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officers is unacceptable, given that the facts clearly show it recruited the officers at behest of the 2nd respondent. 52. The court established that the 1st and 2nd interested parties control the fate of the said workers, having been under the Ministry health programme. This position is supported by the replying affidavit of Redempta Kavindu, of Makueni County Government (the 22 nd Respondent), sworn on 22nd May 2026, who annexed the recruitment advert by the 1st interested party dated 8th May 2020 titled- 'Vacant positions in the public service -Ministry of Health(Universal Health Coverage Programme)’. Kavindu stated that the Universal Health Coverage Programme was conceived, initiated, financed and coordinated by the national government through the Ministry of Health and the Public Service Commission and not by the 22 nd Respondent. Kavindu stated that implementation control for the officers under the programme remains with the 1 st and 2nd interested parties and the relevant intergovernmental entities. 53. I find that from the facts by the petitioner, it was evident that the employer of the clinical officers under the programme is the Ministry of Health supported by the Public Service Commission in the recruitment. The counties received the workers and issued contracts as directed by the 1st and 2nd interested parties. This was a tripartite employment relationship for which both national and county governments must be held jointly and severally responsible. Indeed, it is evident from the affidavit of Makueni County Government that it is the national government, through the 1 st and 2nd interested parties, that holds the key to the fate of the long-term employment of the members of the Petitioner. I say no more. Whether the Honourable Court can rewrite the fixed-term contracts of the members of the Petitioner engaged under the Ministry of Health Coverage Programme. J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 48 | 57

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54. The court agreed that it cannot rewrite contracts of members of the petitioner engaged under the Ministry of Health Coverage Programme. The court’s judicial authority is not fettered by the said contracts. The petitioner raised an issue of equal pay for equal work and discrimination as against clinical officers employed by the county public service boards. Unfortunately, no evidence was placed before the court to support the assertions. 55. The 1st interested party in the affidavit of Mr. Pamba dated 6th November 2024 stated that it could not interfere with the employment of the members of the petitioner and the absorption can only be dealt with at the highest decision-making organ, the Summit. That health is a devolved service, and only the county public service boards can absorb the petitioner's members. 56. The court held that the Ministry of Health is the actual employer of the members of the petitioner under the program and dictates the terms of their service at the deployed counties in conjunction with the 1st interested party. The Makueni County Public Service Board, in a letter dated 26th August 2025 addressed to the PS, State Department of Medical Services, expressly supported the conversion of UHC staff to permanent and pensionable terms. The response was not annexed, and the court reasonably assumed that none existed. 57. The court finds the continued limbo of the fate of the said UHC staff employed under the programme amounts to unfair labour practice. The Ministry of Health and the Public Service Commission owe the said workers a duty of care to direct on their fate in the same way they directed on their recruitment and deployment. 58. Recently, the Court of Appeal had opportunity to determine fate of workers placed on continuous short term of contracts in Kenya County Government Workers' Union v Embu County J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 49 | 57

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Government & another [2026] KECA 1481 (KLR) where the facts are similar to the cause of action as summarised by the court in paragraph 36 as follows- ‘On the status of the appellant’s members, we need to interrogate what the actual status of the employees was, vis-à- vis the documents presented and the reality on the ground. The evidence on record shows that the appellant’s members were initially employed for periods ranging from 3 months to 6 months and for some 1 year. Meaning that, at the initial stage, some engagements were on short-term fixed contracts, and others were specific to the members involved, who were employed on temporary/casual terms. Evident also is that some contracts were renewed for similar periods, and thereafter members worked continuously for long periods, several years, performing duties of a permanent nature. When the contracts lapsed, they lacked clarity about the nature of their employment, leaving them in a state of anxiety and confusion.’’ 59. The Court of Appeal (above) held as follows- ‘We therefore find that the appellant’s members were not casual employees, nor were they on fixed contract as assumed by the respondent, who engaged them for a long period of time and extended the contracts at its whim. We firmly find that the long and continuous service entitled the appellant’s members to statutory protection. The Act was precisely put in place to protect employees who often have no voice against the ‘big brother’ from unfair and poor labour practices that dogged the public and private service for decades. J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 50 | 57

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44.Article 41 of the Constitution stipulates as follows on labour relations: 1.Every person has the right to fair labour practices. 2.Every worker has the right—a.to fair remuneration; b.to reasonable working conditions 45.On whether there was a violation of fair labour practices under Article 41 of the Constitution, and the law which guarantees every worker the right to fair labour practices, including fair remuneration, reasonable working conditions, and generally job security. A reading of the record demonstrates a lack of clarity in the employment terms of the appellant’s members; repeated short-term engagements spanning years; unrenewed for long periods; absence of benefits such as leave, benefits, and pension; and continued uncertainty despite long service. 46. In Kenyatta University vs. Maina (supra), this Court squarely addressed the problem of keeping employees in prolonged casual or insecure arrangements, and held that: an employer cannot retain an employee under casual or rolling short-term arrangements for long periods as such conduct is a deliberate circumvention of labour protections; and it violates the right to fair labour practices under Article 41 of the Constitution. The Court firmly stated: “By being retained to what in essence was casual employment, we are further in agreement with the learned judge’s summation that the respondent’s constitutional rights were infringed. She was treated as a non-permanent employee and this is tantamount to unfair labour practices and thus denying her all the rights of a permanent employee.” 47.We agree with the finding in the case above, which encapsulates very well the situation in this case. The respondent's action cannot but be condemned in the strongest terms, particularly because the appellant’s members were in the employ of the government, which is expected to protect its citizens and to work within the law.’’ J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 51 | 57

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60. I upheld the above Court of Appeal decision to apply in the instant case. The court condemns the 1st interested party's act of recommending short-term contracts for workers under the Ministry of Health UHC programme, thereby circumventing the said workers' right to fair labour practices. The 1st interested party is responsible for ensuring fair labour practices across the public service. The 2nd interested party had a duty to issue the relevant directions sought in the letter of the Makueni County Government dated 26th August 2025 regarding the employment of workers under its programme. 61. I hold that the short-term arrangements for a continued long period for the UHC workers are a deliberate circumvention of labour protections; and it violates the right to fair labour practices under Article 41 of the Constitution. The Ministry of Health, as the initial employer, has failed to provide directions on the employment terms of the said UHC programme workers, and thus cannot escape responsibility. On whether there was evidence of discrimination against the petitioner by the respondents. 62. I found no evidence to prove the allegation of less pay to the members of the petitioner than their peers employed by the respondents. The petitioner had the burden of proving discrimination. I upheld the instant case the above decision of the Court of Appeal (Embu County Government) where it was held- 'On whether there was discrimination contrary to Article 27 of the Constitution and section 5 of the Act, the appellant alleged that its members performed similar duties as permanent employees, were paid less, denied benefits and were overlooked during absorption despite experience. The appellant failed to provide evidence to support J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 52 | 57

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this allegation. Inasmuch as it would have been difficult to obtain such evidence from persons who appeared to be competing with them in the space, the allegations and assertions must be backed by evidence, which was lacking, making it impossible for the court to make a finding on this ground.’ Whether the petitioner is entitled to relief sought. 63. The court held that the short-term contracts of 3 years to 1 year, as directed by the 1st interested party, were a deliberate action of circumventing fair labour rights of the petitioners under Article 41 of the Constitution. I did not find proof of the discrimination claims. 64. The petitioner sought for various reliefs which I proceed to consider- a) An order of MANDAMUS be issued directing the Ministry of Health, Council of Governors, Public Service Commission, Salaries and Remuneration Commission, and the National Treasury to immediately initiate the process of transitioning all the clinical officers currently under the UHC programme as per the circular issued by the Ministry of Health, Ref No. SDPH&PS.1/1/170 dated 2nd of April 2024 and remunerate them as per the SRC guidelines without discrimination. 65. I return this order in the positive, having held that the continued engagement of workers on short-term contracts violates their fair labour rights under Article 41 of the Constitution. The Court of Appeal in the Kenya County Government Workers' Union v Embu County Government & another [2026] KECA 1481 (KLR) granted the following order in similar cause of action – J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 53 | 57

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‘We direct and order the respondents to regularize the appellant’s members’ employment terms and conditions of service to accord with fair labour practices in accordance with the Constitution and the Employment Act forthwith.‘ 66. The 12th respondent on the order of Mandamus sought submitted that the Court cannot compel budgetary appropriation without violating the principle of separation of powers. It relied on Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge [1997] eKLR, where the Court of Appeal held that an order of mandamus cannot compel a public body to perform a duty in a specific way where the law leaves discretion as to the mode of performance. I agreed with the submission. 67. It is my finding that the law places an obligation on 1st interested party to deal with grievances on employment of all public officers under their jurisdiction. The Ministry of Health is the owner of the programme in which the petitioner's members are employed. The court noted that it was undisputed that the Ministry of Health circular dated 2nd April 2024 requested approval from the Public Service Commission on transition UHC Clinical Officers. I adopt the order by the Court of Appeal in Kenya County Government Workers' Union v Embu County Government & another [2026] KECA 1481 (KLR) as a relief to the grievance on the employment status of the workers under the UHC programme and order as follows- I direct and order the interested parties to regularize 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 of the court on the progress. J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 54 | 57

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b. An order of MANDAMUS be issued directing the 47 Respondents and the Ministry of Health to pay gratuities for all the four years served by the clinical officers under the Universal Health programme contract as per the Gazette Notice No. 8091 dated 12th October 2020. 68. I did not find the Gazette Notice in the annexures to the petition. I decline to make the order as the members of the petitioner hold contracts of employment, and the respondents had been guided on how to remunerate them. The contracts had terms of service and are complete on their own. c. Order of DECLARATION sought that the deliberations made in the Intergovernmental Relations Technical Committee (IGRTC) summit on 24th of March 2023 are unconstitutional and unlawful as they violate the principle of “equal pay for equal work” and have prevented the transitioning of terms of UHC clinical officers to permanent and pensionable terms- 69. I did not find the record of the deliberations made in the Intergovernmental Relations Technical Committee (IGRTC) summit on 24th of March 2023 thus was unable to make any decision on the same. d. Order of MANDAMUS compelling the 47 Respondents and the Ministry of Health to remit all the already deducted NSSF contribution for the UHC clinical officers. 70. The court finds that the employer had a duty to comply with deductions and to remit them as required. The court need not make such an order as it is a statutory duty and there is no evidence before the court of non-compliance. J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 55 | 57

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71. On the costs of the petition, the court, taking into account the need to promote industrial harmony, makes no order as to costs in the petition. Each party to bear its own costs. Disposition 72. In the upshot, the court held that the short-term contracts of 3 years to 1 year given to the members of the petitioner, as directed by the 1st interested party, were a deliberate conduct by the interested parties of circumventing fair labour rights under Article 41 of the Constitution. 73. 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. 74. Each party to bear its own costs in the petition. 75. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 25 TH DAY OF SEPTEMBER, 2026. JEMIMAH KELI JUDGE IN THE PRESENCE OF: Court Assistant: Otieno J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 56 | 57

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Petitioner: Ms Ochieng h/b Ataka 1st respondent – Mrs Iseme 12th Respondent:- Mararo 22nd Respondent: absent 1st Interested Party: SRC- Njuguna 3rd Interested Party: absent J U D G M E N T I N N A I R O B I E L R C P E T I T I O N N O . E 1 5 3 O F 2 0 2 4 P a g e 57 | 57

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