The Kenya National Union of Nurses and Midwives v The County Government of Machakos

2025. The consent orders and decree were served on 7 October 2025 and 10 February 2026. Despite the service, the respondent has refused to comply with the court orders, the conciliation report, and its recommendations. Mwendwa avers in his affidavit that the applicant has since moved the court for judicial review orders against the respondent for refusing to comply with the court decree and, accordingly, seeks committal orders and a jail term not exceeding 6 months. The orders sought should be issued with costs. The respondent has not filed a reply. The applicant submitted that, following industrial grievances over acute staffing shortages, promotions, and deficient statutory allowances within the respondent for its members, an industrial court was convened. The parties held a labour conciliation and entered into a return to work agreement (RTWA) on 21 August 2025. The court adopted the terms of the RTWA as a consent order on 28 August 2025 in Petition No. E011 of 2025. The court therefore issued a decree on 3 February 2026. The respondent was ordered to implement the nursing service allowance increment of Ksh. 10,000 and a uniform allowance increment of Ksh. 15,000. The parties also agreed to commence and conclude a CBA, hire 500 additional nurses to mitigate the shortage, and pay promotional salary arrears for 231 nurses and pending promotions for 44 nurses. The decree was served upon the respondent, who has refused to implement and apply the consent orders. The applicant thus submitted that, under the Government Proceedings Act, upon the decree, they moved the court to obtain a decree and Certificate of Order of Costs against the Government, which has been extracted and served. There has been no compliance; therefore, the orders sought should be issued with the committal of the accounting officers of the respondent, as held in Multiple Services Limited v ELRC MACHAKOS JR NO. E006 OF 2026 RULING 2

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Nairobi City County Government – Judicial Review Application E042 of 2025. The applicant has undertaken the due process to allow the respondent to comply with the court decree, to no avail. In Republic v Principal Secretary, Ministry of Environment and Natural Resources & another; Munyao & another [ex parte applicants] (2026) KEHC 1263, the court held that unlike civil proceedings, where a decree for the payment of money or costs has been issued against the government in favour of a litigant, the decree can only be enforced by way of an order of mandamus compelling the accounting officer in the relevant Ministry to pay. Thus, section 21(3) of the Government Proceedings Act imposes a statutory duty on the accounting officer concerned to make payment. The respondent has refused to perform an administrative public function. Despite knowledge of the court decree, the refusal is deliberate and calculated to defeat the purpose of the consent order. The respondent's submissions that the mandatory legal framework justifies the delay and the need for inter-departmental collaboration, budgetary constraints, the Public Finance Management Act, and guidance from the Salaries and Remuneration Commission (SRC) are incorrect, since, through a letter dated 20 April 2026, the SRC noted that while the Ksh. 5,000 Health Risk Allowance is approved, the agreed rates for the Nursing Service and Uniform Allowances do not align with the standard SRC county advisories. The respondent's request for more time to comply thus has no basis. No evidence supports the claim that it cannot enforce the decree herein. The reliance on the SRC mandate has no constitutional or legal basis, as the SRC has issued a letter. The orders sought should be issued. The respondent submitted and admitted the consent order, the conclusion report, and the decree dated 3 February 2026 herein. The respondent also acknowledged its legal obligation to implement the decree. The sole issue is therefore the nature and complexity of the obligations under the decree, and the respondent's steps to seek mandamus, certiorari, and ELRC MACHAKOS JR NO. E006 OF 2026 RULING 3

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declaration orders are not appropriate in the circumstances of this case. The case is materially different from the monetary decree enforcement cases on which the applicant has relied. In the interests of justice, the court should allow the respondent a structured and supervised timeline for implementing the decree instead of issuing coercive orders that are not practical in the circumstances. The respondent submitted that under the decree dated 3 February 2026, the respondent was directed as follows: a) Implement a nursing service allowance increment of Ksh. 10,000 and a uniform allowance increment of Ksh. 15,000. b) Enhancement of the health risk allowance from Ksh. 3,850 to Ksh. 5,000. c) Commencement and conclusion of formal Collective Bargaining Agreement (CBA) negotiations. d) Hiring of 500 additional nurses and midwives. and e) Payment of promotional salary arrears for 231 nurses and resolution of long-delayed promotion for 44 nurses. The respondent submitted that these obligations are different in character from a monetary decree and cases laid upon by the applicant. Unlike a single monetary sum payable by the accounting officer, the directions require inter-departmental coordination across health, finance, and public service departments, and compliance with the SRC framework governing county government remuneration and the Public Finance Management Act. The county has a budgetary cycle and needs to engage with the national government on matters concerning the public service establishment. The SRC has since communicated to the parties through a letter dated 20 April 2026 and confirmed that while the Health Risk Allowance increment to Ksh. 5,000 is approved, the Nursing Service and Uniform Allowance rates as agreed do not align with the SRC county advisory rates, and therefore further engagement with the national framework is required before implementation. ELRC MACHAKOS JR NO. E006 OF 2026 RULING 4

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The respondent wrote to the Public Service on 21 April 2026 seeking guidance on implementing the allowance increments in a manner consistent with the SRC framework. The respondent thus submitted that the applicant has not satisfied the conditions necessary for the grant of orders sought in terms of section 21 of the Government Proceedings Act. A valid decree has been obtained, the 21 days for compliance have lapsed, and a Certificate for Costs was served; there is no contestation of the procedural requirements. However, the necessary conditions for a grant of an order of mandamus are not satisfied. The court's discretion is not properly invoked, particularly where the obligations sought to be enforced are complex, and there is a demonstration of good faith. Non-compliance here is not a justification for administrative restraint but an opportunity to engage and establish a framework for implementation. Determination The applicant is seeking an order of mandamus compelling the respondent to comply with the decree dated 3 February 2026. This is admitted by the respondent: the decree was issued following the consent order by the parties, but due to the complexity of the directions, budgetary constraints and the need to comply with the SRC framework, more time and a framework of implementation are necessary. The applicant is also seeking an order of certiorari to quash the decision, directive or conduct by the respondent in purporting to withhold, delay or otherwise decline to implement the decree of the court issued on 3 February 2026. Again, the respondent does not deny that the order and decree were issued. Still, inter-departmental engagement with the Court of Finance, Public Service, and the national government is needed to facilitate implementation. However, the grounds in support of the application seek the committal of the respondent accounting officer(s) for refusal to comply with the court ELRC MACHAKOS JR NO. E006 OF 2026 RULING 5

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decree and a sanction of a jail term not exceeding 6 months. The respondent's admission that there has been no compliance with the court decree in this case is important. It is also important to restate the purpose of judicial review proceedings. The court's jurisdiction of judicial review is a special mandate. It is the power granted to review the lawfulness of an enactment or decision, action, or failure to act in relation to a public function. In Grain Bulk Handlers Limited v J. B. Maina & Co. Ltd & 2 others [2006] eKLR, this purpose of judicial review is summarised as follows: Judicial Review jurisdiction regulates the process by which a person or body exercises a decision-making power given by law. The subject matter of Judicial Review is the legality of such decisions. Further, in Republic v Public Procurement Administrative Review Board & Another ex parte Gibb Africa Ltd & Another [2012] eKLR, the court emphasised that: In judicial review, therefore, the court’s jurisdiction is limited to applying the three tests of “legality”, “rationality” and “procedural propriety” to the decision under review, and once the decision passes the tests, the court has no business taking any further step in respect of that decision. There is always a temptation to descend into the arena and substitute the judge’s decision with that of the public body whose decision is under attack. A judge should, however, avoid this temptation by all means lest he be accused of abusing the powers given to him to review the decisions of subordinate courts and tribunals. The court recognises that the background to the application herein was an industrial action called by the applicant and affecting operations within the respondent. Recognising this foundation, parties settled the matter through a consent order. The applicant’s members resumed work on the basis of the RTWA. The respondent made commitments following the RTWA, leading to the consent order, which is admitted. ELRC MACHAKOS JR NO. E006 OF 2026 RULING 6

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Did the respondent appreciate the issues addressed in the consent order of 3 February 2026 before executing it? Was the commitment based only on the RTWA? Although the respondent appreciates that the consent order and decree are not purely financial, the non-financial items in the consent order have not been addressed. A good example is the commencement and conclusion of a CBA between the parties. Various steps lead to a CBA's conclusion. These are largely non-monetary, and the respondent has made no effort to engage in any manner. Of concern, the consent order had no default clause. This would ordinarily require the parties to act on the RTWA agreement. The respondent's motivation to address the consent order was left open. What is clear to the court, as submitted by the respondent, is that clarity on the timeline regarding the consent order and decree herein is necessary. The applicant, in seeking orders of mandamus and certiorari without identifying the responsible accounting officers to be sanctioned, is also left in the dark. The applicant's application is justified; the consent order lacked material particulars. A time frame and implementation framework. These are necessary elements in a matter such as herein addressed by the application. Equally liable is the respondent. The cause of action necessitating these proceedings is not lost. Assuming that complex implementation challenges can be addressed without a proactive approach will not foster industrial peace. Accordingly, the orders sought shall not issue. The parties shall return to the shop floor and agree on the consent order's timelines and framework. A court-monitored process shall suffice. Return and address the court on the same date, 29 October 2026. For industrial peace, no orders on costs. Delivered in open court this 30th day of September 2026 ELRC MACHAKOS JR NO. E006 OF 2026 RULING 7

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M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… and ………………………………….. ……… ELRC MACHAKOS JR NO. E006 OF 2026 RULING 8

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