County Government of Trans Nzoia v Kenya National Union of Nurses; County Public Service Board (Interested Party)

JUDGMENT Introduction 1. The Petitioner is a public body established under the County Governments Act. 2. The Respondent is a registered trade union representing all nurses in matters of employment and labour relations. The Petition 3. The Petitioner filed the Petition dated 4 th October 2024 pursuant to various provisions of the Constitution, seeking the following reliefs: a. A declaration that the planned strike by the members of the Respondent as communicated through a notice dated 30th September 2024 is premature, unconstitutional, illegal, null and void. b. A declaration that health services are essential services that can only be interrupted as a last option where the negotiations between the employer and health providers have failed. KTL ELRC PETITION NO. E007 OF 2024 2 JUDGMENT

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c. An order be issued suspending the intended strike by members of the Respondent to enable the Petitioner implement the agreement dated 24th July 2024 between the Petitioner and the Respondent. d. An order of injunction be issued restraining the members of the Respondent from engaging in any strike until they have exhausted all mechanisms created under section 76 and 78(1)(a)(b)(c)(d)(e) (f)&(h) of the Labour Relations Act. e. Costs of this Petition be granted to the Petitioner 4. The Petition is founded on the events of 3 rd July 2024, when the Respondent issued a strike notice calling upon its members to participate in industrial action over unresolved grievances relating principally to promotions and salary increments. 5. The Petitioner averred that, following the issuance of the strike notice, several consultative meetings were held between the County Government of Trans Nzoia and the Kenya National Union of Nurses (KNUN), with a view to KTL ELRC PETITION NO. E007 OF 2024 3 JUDGMENT

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resolving the dispute in the best interests of the nurses and members of the public. 6. According to the Petitioner, the parties entered into an agreement on 24th July 2024, pursuant to which the Respondent suspended the intended strike for sixty (60) days to allow for progress in the implementation of the agreed matters. 7. The Petitioner averred that clause 3 of the agreement required a report on the rationalisation exercise and staffing requirements to be forwarded to the County Public Service Board by 30th July 2024, declaring the following positions: i. Job Group R – two (2) posts ii. Job Group Q – eleven (11) posts iii. Job Group P – fifteen (15) posts for diploma holders and nine (9) posts for degree holders iv. Job Group N – sixty-three (63) posts for diploma holders and twenty-nine (29) posts for degree holders KTL ELRC PETITION NO. E007 OF 2024 4 JUDGMENT

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v. Job Group M – forty-nine (49) posts for diploma holders and twenty-nine (29) posts for degree holders vi. Job Group L – seven (7) posts for certificate holders, sixtyseven (67) posts for diploma holders and twelve (12) posts for degree holders 8. The Petitioner contended that, through a letter dated 19 th August 2024, Peter M. Wamoto, the Chairperson of the Trans Nzoia County Public Service Board, communicated to the Chief Officer responsible for Public Service Management the decision reached on 29th July 2024 regarding the promotion of ninety-four (94) officers, some of whom were members of the Kenya National Union of Nurses. 9. The Petitioner further averred that, through a letter dated 28th August 2024, the Chief Officer responsible for Public Service Management forwarded to the Secretary of the County Public Service Board the minutes of the rationalisation exercise undertaken by the County Human Resource Management Advisory Committee on 20th August KTL ELRC PETITION NO. E007 OF 2024 5 JUDGMENT

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2024, for purposes of declaring positions available for promotion. 10. It is further averred that the letter dated 28 th August 2024 forwarded the revised organisational structure for the Department of Health Services and Sanitation, together with the nursing personnel reporting structure that informed staffing within the relevant division. 11. On this basis, the Petitioner maintained that it had fulfilled its obligations and was continuing to implement the agreement dated 24th July 2024. It asserted that it had taken proactive measures, set aside funds for the promotion and recruitment of healthcare workers and suspended the promotion and recruitment of employees in other cadres pending the resolution of the nurses’ grievances. The Petitioner contends that despite putting in place those measures, the Respondent issued a notice dated 30 th September 2024 communicating the resumption of the strike and calling upon its members to commence industrial action on 8th October 2024. KTL ELRC PETITION NO. E007 OF 2024 6 JUDGMENT

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12. According to the Petitioner, the notice was issued while it was still implementing the agreement dated 24th July 2024, having already taken proactive measures and allocated funds for the promotion and recruitment of healthcare workers. It asserted that the promotion and recruitment of employees in other cadres had been suspended pending the resolution of the nurses’ grievances. 13. The Petitioner maintained that the intended strike would deny, violate, infringe or threaten the constitutional rights and fundamental freedoms of the residents of Trans Nzoia County, particularly because the Respondent’s members provide essential healthcare services. 14. The Respondent did not file a response to the Petition. Instead, it raised a Preliminary Objection dated 7 th November 2024 on the following grounds: i. THAT the Honourable Court lacks jurisdiction to hear this Petition and the Applications by dint of section 77(1),(a)(b)(2)&(3) of the Labour Relations Act for the KTL ELRC PETITION NO. E007 OF 2024 7 JUDGMENT

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Petitioner / Applicant has blantly refused to attebd two conciliation meetings ii. That the Honourable Court lacks jurisdiction to hear this Petition and the Applications by dint of section 2(b)&(d) of the Labour Relations Act , Section 59 of the County Government Act and section 22 of the Employment and Labour Relations Court Act. iii. That the Petition and the applications thereto by the petitioner are an abuse of court process and ought to be struck out with costs. 15. When the matter came before the Court on 27 th November 2024, counsels for both parties informed the Court that the parties had entered into a return-to-work formula. The formula was adopted as an order of the Court and all pending applications were marked as compromised. 16. The Petition was subsequently canvassed by way of written submissions pursuant to the Court’s directions issued on 20 th May 2026. The Petitioner’s submissions are dated 12 th June 2026 while the Respondent’s submissions are dated 9 th July 2026. KTL ELRC PETITION NO. E007 OF 2024 8 JUDGMENT

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The Petitioner’s submissions 17. The Petitioner in its submissions identified the issues for determination to be:i. Whether the Petition meets the constitutional threshold for constitutional litigation ii. Whether the intended strike complied with the Constitution and the Labour Relations Act iii. Whether the intended strike was premature in light of the agreement dated 24th July 2024 and the Petitioner's implementation thereof iv. Whether the threatened strike posed a threat to the constitutional rights of the residents of Trans Nzoia County v. Whether the Petitioner is entitled to the reliefs sought. 18. On whether the Petition meets the constitutional threshold, the Petitioner relied on the decisions in Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR in submitting that the Petition fully KTL ELRC PETITION NO. E007 OF 2024 9 JUDGMENT

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satisfies this threshold, as it specifically identifies Articles 21(1), 26, 43 and 259 of the Constitution as the provisions implicated by the Respondent’s intended industrial action. 19. The Petitioner submitted that the Petition identifies the persons whose rights are threatened, being the residents of Trans Nzoia County who depend on public health facilities for healthcare services and that it sets out the manner in which those rights are threatened, that is, that the withdrawal of nursing services would impede access to healthcare services and emergency medical treatment thereby threatening the rights guaranteed under Articles 26 and 43 of the Constitution. 20. It is therefore submitted that the Petition herein is properly before this Honourable Court. 21. On whether the intended strike was premature and contrary to the Labour Relations Act, the Petitioner submitted that, although Article 41 of the Constitution guarantees workers the right to strike, that right must be exercised within the confines of the Labour Relations Act. KTL ELRC PETITION NO. E007 OF 2024 10 JUDGMENT

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22. Citing section 76 of the Labour Relations Act which permits participation in a strike only where a trade dispute remains unresolved after conciliation and the prescribed statutory procedures have been exhausted, the Petitioner submitted that the dispute in the present case did not remain unresolved after conciliation. It is submitted that following the strike notice dated 3rd July 2024, the parties participated in consultations and conciliation proceedings that culminated in a comprehensive agreement dated 24 th July 2024. The Petitioner submitted that under that agreement, the Respondent expressly agreed to suspend the intended strike for sixty (60) days pending the implementation of the agreed resolutions and that it immediately embarked on implementing the agreement. 23. The Petitioner submitted that promotions were undertaken, nursing positions were rationalised and resources were allocated towards addressing the concerns raised by the Respondent. It was submitted that the County recruited one hundred and fourteen (114) nurses; promoted employees, including nurses, KTL ELRC PETITION NO. E007 OF 2024 through 11 both common-cadre and JUDGMENT

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competitive promotions; established a Collective Bargaining Agreement (CBA) Review Committee with union representation; secured comprehensive medical cover for its staff; improved the remittance of statutory deductions; and enhanced the supply of health products and technologies to public health facilities. 24. The Petitioner maintained that these actions demonstrated its substantial compliance with the agreement and its good faith in addressing the matters raised by the Respondent. 25. The Petitioner relied on the County Government’s letter dated 14th August 2025, which indicated that most of the issues raised by the Respondent had either been resolved, substantially implemented or were actively undergoing resolution through established administrative, judicial and consultative processes. 26. The Petitioner therefore submitted that the threatened strike was premature and contrary to sections 76 and 78 of the Labour Relations Act. 27. On whether the intended strike threatened constitutional rights, the Petitioner submitted that the withdrawal of KTL ELRC PETITION NO. E007 OF 2024 12 JUDGMENT

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nursing services would impede access to healthcare services, disrupt emergency medical treatment and expose vulnerable members of the public to suffering, indignity and possible loss of life. 28. The Petitioner urged the court to balance the constitutional rights of workers against those of the public by considering that the implementation of the parties’ agreement was ongoing and that the Respondent had not exhausted all the available dispute-resolution mechanisms before threatening industrial action. 29. In addition, the Petitioner submitted that the nurses eventually resumed work and healthcare services continued to be provided throughout Trans Nzoia County and that despite this development, it continued to face recurrent threats of industrial action whenever discussions arose concerning implementation timelines and other outstanding issues. The Petitioner thus argued that such repeated threats created uncertainty in the planning, budgeting and delivery of healthcare services. KTL ELRC PETITION NO. E007 OF 2024 13 JUDGMENT

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30. The Petitioner maintained that the fact that the nurses ultimately resumed work demonstrated the effectiveness of dialogue and confirmed that the outstanding issues were capable of resolution through lawful and structured mechanisms. 31. It is the Petitioner’s submission that the evidence before the Court demonstrated that the parties had successfully engaged in consultations and conciliation and subsequently entered into the agreement dated 24th July 2024. 32. Consequently, the Petitioner submitted that the intended strike was premature, contrary to sections 76 and 78 of the Labour Relations Act, inconsistent with the agreement dated 24th July 2024 and a threat to the constitutional rights protected under Articles 26 and 43 of the Constitution. 33. In the end, the court was urged to grant the reliefs sought in the Petition. The Respondent’s submissions 34. On its part, the Respondent in its submissions identified the issues for determination to be: KTL ELRC PETITION NO. E007 OF 2024 14 JUDGMENT

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i. Whether the intended strike was premature and contrary to the Constitution and the Labour Relations Act ii. Whether the Petitioners deserve the declaratory and injunctive reliefs iii. Whether the grievances raised by the Respondent are genuine and justified iv. Whether the Petition is tenable in light of the new circumstances 35. On the first issue, the Respondent submitted that it reported a trade dispute on 1st July 2024 concerning several grievances, as particularised in the strike notice dated 3 rd July 2024. It maintained that it sought to resolve the grievances amicably, but the County Government failed to accord it an audience. 36. The Respondent submitted that the strike notice was issued following the Petitioner’s failure to implement the agreement signed on 26th July 2024. 37. The Respondent further submitted that it should not bear responsibility for any alleged threat to the constitutional KTL ELRC PETITION NO. E007 OF 2024 15 JUDGMENT

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rights guaranteed under Articles 26 and 43 of the Constitution and maintained that the responsibility of creating a conducive environment for the protection and fulfilment of those rights rests with the Petitioner. 38. On the issue whether the Petitioner is entitled to the declaratory and injunctive reliefs sought, the Respondent submitted that the orders sought were not only self-serving but would also undermine the fundamental rights of its members. In this regard, the Respondent contended that the Petitioner was fully aware of the grievances raised but chose not to implement the agreed resolutions, despite several follow-ups by the Respondent, both through physical engagements and written correspondence. 39. The Respondent relied on Article 41 and Article 47 of the Constitution in submitting that it was improper for the Petitioner to seek the Court’s protection after failing to discharge its obligations. It maintained that granting the reliefs sought would occasion an injustice to its members and ultimately jeopardise the provision of quality nursing services to the residents of Trans Nzoia County. KTL ELRC PETITION NO. E007 OF 2024 16 JUDGMENT

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40. On whether the grievances raised were genuine and justified, the Respondent submitted that the issues affecting nursing personnel within the Petitioner’s healthcare system were of critical importance and required immediate attention. The Respondent contended that there was a shortage of nursing staff and that the continued employment of nurses on contractual terms was contrary to the parties’ agreement and the applicable provisions of the Public Service Commission Human Resource Policies and Procedures Manual, 2016. It argued that these matters not only jeopardised service delivery but also undermined the stability and morale of the nursing workforce. 41. Further, it was submitted that delays in promotions, the absence of clear implementation timelines and the Petitioner’s failure to act in accordance with the parties’ earlier agreements had created an environment susceptible to discrimination, dissatisfaction and low staff morale. It was also submitted that the persistent challenges relating to the supply of health products and technologies, together with the absence of a clear organisational structure for nursing KTL ELRC PETITION NO. E007 OF 2024 17 JUDGMENT

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personnel, reflected serious governance and administrative shortcomings that required urgent attention. 42. The Respondent maintained that punitive transfers, victimisation of union officials, favouritism in appointments to managerial positions and the failure to administer transfers fairly and transparently had eroded trust within the nursing workforce. 43. It further contended that the lack of adequate and reliable medical cover, coupled with the inconsistent remittance of statutory and third-party deductions, had left employees vulnerable and frustrated and had strained the relationship between the staff and the County administration. 44. According to the Respondent, the Petitioner had not placed any evidence before the Court demonstrating compliance with, or resolution of, the grievances raised by the Respondent. 45. In addition, the Respondent submitted that this Honourable Court had adopted the Return-to-Work Agreement dated 18 th November 2024 as an order of the Court and that the order had been duly served upon both the Petitioner and the KTL ELRC PETITION NO. E007 OF 2024 18 JUDGMENT

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County Public Service Board. It argued that the continued failure to comply with the agreement and the resultant court order constituted a direct affront to the law. 46. The Respondent maintained that it was imperative for the Petitioner to take immediate action to resolve the concerns raised by its members. It submitted that a comprehensive review and prompt resolution of the outstanding issues were necessary. According to the Respondent, those measures were essential to improving working conditions, restoring trust between the nursing administration, and ensuring staff the and the effective County delivery of healthcare services to the residents of the County. 47. The Respondent further submitted that addressing those concerns would demonstrate the County Government’s commitment to fair labour practices, employee welfare and the overall strengthening of the County’s healthcare system. 48. Regarding statutory and Respondent contended that third-party the deductions, failure to remit the the deductions had subjected its members to serious financial KTL ELRC PETITION NO. E007 OF 2024 19 JUDGMENT

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hardship, including pecuniary embarrassment and penalties imposed by financial institutions. 49. It further submitted that the failure to deduct and remit union dues had imposed a serious financial burden on the Respondent and impaired its ability to represent its members effectively. 50. The Respondent maintained that the County Public Service Board’s failure to remit statutory and third-party deductions amounted to a subversion of the law and had significantly prejudiced its members. 51. It consequently submitted that the Petitioner’s actions and omissions amounted to unfair labour practices and violated the right to fair administrative action, and therefore called for the intervention of the Court. 52. The Respondent therefore prayed that judgment be entered in its favour in the following terms: a. An order directing the County Public Service Board to replace every nurse who exits the service as and when such vacancy arises KTL ELRC PETITION NO. E007 OF 2024 20 JUDGMENT

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b. An order directing the Petitioner to promote all nurses who are due for promotion and to avoid unnecessary delays in undertaking future promotions c. An order directing the Petitioner to forward to the County Public Service Board a report on the rationalisation exercise and the staffing requirements, declaring the following vacant positions: i. Job Group R – two (2) posts ii. Job Group Q – eleven (11) posts iii. Job Group P – fifteen (15) posts for diploma holders and nine (9) posts for degree holders iv. Job Group N – sixty-three (63) posts for diploma holders and five (5) posts for degree holders v. Job Group M – forty-nine (49) posts for diploma holders and twenty-nine (29) posts for degree holders vi. Job Group L – seven (7) posts for certificate holders, sixty-seven (67) posts for diploma holders and twelve (12) posts for degree holders KTL ELRC PETITION NO. E007 OF 2024 21 JUDGMENT

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d. The County Public advertisement of Service the Board competitive to cause the promotions of nurses within the next 30 days. e. The county government of Trans-Nzoia through the department of Health Services and Sanitation to ensure that there is at least 60% stock of Health Technologies and products supply at any given time in every facility and the pull system be adopted and maintained to deliver the supplies directly to the user facility which must be reviewed quarterly. f. Nurses to be appointed and retained in the deserved managerial positions both in health facilities and programmes. g. The Petitioner and County Public Service Board to start implementation of the career guidelines for nursing personnel. h. The Petitioner and County Public Service Board shall implement the centrally Bargaining agreement negotiated through the Collective Council of Governors. KTL ELRC PETITION NO. E007 OF 2024 22 JUDGMENT

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i. The County Government of Trans-Nzoia through the Department of Health services and sanitation to establish a posting committee in the next 30 days and all transfers to be handled through a multiHuman Resource disciplinary Departmental Advisory Committee. j. All management and programme positiorns to be filled competitively based on merit and seniority. k. All statutory and third-party deductions be paid in the next 60 days. Determination 53. I have considered the Petition, the material placed before the Court and the parties’ respective submissions. The issues arising for determination are:i. Whether the Petition has been overtaken by subsequent events ii. Whether the Petitioner is entitled to the declaratory and injunctive reliefs sought iii. Whether the Respondent is entitled to the reliefs sought in its submissions KTL ELRC PETITION NO. E007 OF 2024 23 JUDGMENT

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iv. Who should bear the costs of the Petition. Whether the Petition has been overtaken by subsequent events 54. From a perusal of the Petition, it is clear that it was prompted by the Respondent’s notice dated 30 th September 2024 through which its members were called upon to resume industrial action on 8 th October 2024. The Petitioner consequently sought, among other reliefs, orders suspending the intended strike and restraining the Respondent’s members from participating in industrial action. 55. It is common ground that, during the pendency of the proceedings, the parties entered into a return-to-work formula dated 18th November 2024. When the matter came before the Court on 27 th November 2024, the agreement was adopted as applications an order were of the marked Court as and all pending compromised. The Respondent’s members thereafter resumed duty. 56. The industrial action which the Petitioner sought to forestall is, therefore, no KTL ELRC PETITION NO. E007 OF 2024 longer imminent. 24 The circumstances JUDGMENT

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existing at the time the Petition was filed have materially changed, and the principal dispute giving rise to the proceedings has been resolved through the parties’ subsequent agreement. 57. Courts do not issue orders in vain or determine disputes that no longer present a live controversy between the parties. I therefore find and hold that the Petition herein has been overtaken by events. Whether the Petitioner is entitled to the declaratory and injunctive reliefs sought 58. In its submissions, the Petitioner urged the court to grant declaratory and injunctive reliefs arguing that they were necessary as it continued to face recurrent threats of industrial action. No specific subsequent strike notice or imminent industrial action was, however, placed before the Court. 59. The Court cannot issue a general and indefinite injunction restraining the Respondent’s members from exercising their constitutional right to strike in relation to future disputes KTL ELRC PETITION NO. E007 OF 2024 25 JUDGMENT

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whose circumstances and compliance with the applicable statutory procedures cannot presently be ascertained. 60. Article 41(2)(d) of the Constitution guarantees every worker the right to strike. That right is not absolute and must be exercised in accordance with the Constitution and the procedures prescribed under the Labour Relations Act. 61. Whether any future strike is protected must be determined on the basis of the circumstances prevailing at the time, including the nature of the dispute and compliance with the statutory procedures governing conciliation and industrial action. 62. The evidence before the Court shows that, after the initial strike notice, the parties engaged in consultations and entered into an agreement aimed at resolving the dispute. The subsequent return-to-work formula further confirms that the dispute was amenable to resolution through dialogue and the statutory dispute-resolution mechanisms. 63. I also take judicial notice that nurses provide critical healthcare services and that disruption of those services may adversely affect the rights to life, health and emergency KTL ELRC PETITION NO. E007 OF 2024 26 JUDGMENT

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medical treatment guaranteed under Articles 26 and 43 of the Constitution. At the same time, the constitutional rights of healthcare workers under Article 41 cannot be extinguished merely because their services affect the public interest. The rights of the workers and those of the public must be balanced through meaningful engagement, compliance with negotiated agreements and observance of the procedures established under the Labour Relations Act. 64. In the present case, however, the Court is not called upon to determine the legality of an ongoing or imminent strike. The strike contemplated in the notice dated 30th 2024 was overtaken by the September return-to-work formula subsequently adopted as an order of the Court. 65. Consequently, the declaratory and injunctive reliefs sought by the Petitioner have been rendered moot. Whether the Respondent is entitled to the reliefs sought in its submissions 66. The Respondent, in its submissions, sought several substantive orders relating to recruitment, promotions, KTL ELRC PETITION NO. E007 OF 2024 27 JUDGMENT

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staffing levels, the supply of health products, medical cover, transfers, statutory deductions and implementation of the Collective Bargaining Agreement. 67. The Respondent did not file a response or cross-petition setting out a factual and legal basis for those reliefs. Submissions are not pleadings and cannot constitute a foundation for the grant of substantive reliefs that were neither pleaded nor subjected to evidential scrutiny. The prayers introduced through the Respondent’s submissions are therefore not properly before the Court and cannot be granted. 68. The concerns raised by the Respondent are nonetheless serious employment and labour-relations matters. To the extent that any obligations arising from the agreement dated 24th July 2024 or the return-to-work formula adopted on 27th November 2024 remain unfulfilled, the parties are bound to address them through continued engagement and the appropriate enforcement mechanisms. Either party remains at liberty to invoke the lawful dispute-resolution procedures should a fresh dispute arise. KTL ELRC PETITION NO. E007 OF 2024 28 JUDGMENT

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69. In view of the foregoing, I find that the Petition has been overtaken by subsequent events and that the reliefs sought are no longer capable of serving any practical purpose. The Petition is accordingly marked as spent. 70. As the dispute concerns subsisting employment between the parties and having regard to the settlement reached during the proceedings, it is appropriate that each party bears its own costs. 71. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 MAUREEN ONYANGO JUDGE KTL ELRC PETITION NO. E007 OF 2024 29 JUDGMENT

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