Embu County Government v Kenya Union of Clinical Officers & 7 others

welfare of the Respondents’ members who are its (Claimant) employees. It averred that, arising from the said meetings, the parties entered into a Bipartisan agreement. 2. The Claimant further avers that the Respondents issued a 14-day notice of strike, with the intended industrial action scheduled to commence on 10th November 2025. According to the Claimant, its officers subsequently held several meetings with the Respondents, during which the parties reached an agreement on 10 of the 12 issues set out in the strike notice. 3. The Claimant asserts that, on 8th November 2025, the Respondents suspended the intended industrial action for 21 days to allow for further action and negotiations on the two (2) outstanding issues, and indicated their willingness to continue engaging in negotiations. 4. It is the Claimant’s contention that before it could conclude the process and implement the various matters agreed upon, the Respondents issued a press statement on social media platforms announcing their intention to resume the strike on 1st December 2025. 5. The Claimant contends that the intended strike was illegal and unprotected, and was undertaken in bad faith, particularly given that the parties had already reached an agreement on 10 of the 12 issues forming the subject of the strike notice. 2

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6. It is the Claimant’s position that the Respondents’ members, comprising nurses, clinical officers, doctors and cleaners in the health sector, as well as employees engaged in slaughter services, revenue collection and disaster management in the public sector, are engaged in essential services within the meaning of Section 81 of the Labour Relations Act. The Claimant therefore contends that the industrial action posed a serious risk to the provision of essential services and could result in loss of life and other unintended health complications. 7. It is against this background that the Claimant sought the following reliefs against the Respondent unions: a) A declaration that the ongoing strike is illegal and unprotected; b) A declaration that the Respondents’ union members belong to essential services in the strike sense hence not allowed to participate in the strike as provided for under Section 81(3) of the Labour Relations Act 2007. c) An order compelling the Respondents to call off the strike and the Respondents' members working for Embu County Government to resume work with immediate effect. d) Costs of the suit. 8. On 4th December 2025, the Court suspended the industrial action for a period of seven (7) days to allow the parties to conclude negotiations. The interim orders were subsequently extended on various dates and remain in force to date. 3

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9. It is noteworthy that, in the course of these proceedings, the Claimant and the 2 nd, 4th, 5th, 6th, 7th and 8th Respondents entered into a consent, which was adopted as an order of the Court on 17th February 2026. Consequently, the Claimant’s case against the 2nd, 4th, 5th, 6th, 7th and 8th Respondents was marked as closed. 10.Thereafter, the Claimant and the 1st and 3rd Respondents were directed to conclude negotiations on the non-contentious issues. 11.On 13th April 2026, the said parties informed the Court that they had reached a partial settlement and, accordingly, filed a partial consent, which was adopted as an order of the Court. 12.The 1st and 3rd Respondents were subsequently granted leave to respond to the Memorandum of Claim, with corresponding leave being granted to the Claimant to file a rejoinder. The parties further consented to have the matter determined on the basis of documentary evidence pursuant to Rule 59 of the Employment and Labour Relations (Procedure) Rules, 2024. 13.In its Response to the Memorandum of Claim, the 1 st Respondent has admitted that it had held meetings with the Claimant to deliberate on the welfare of the Claimant’s employees, which meetings culminated in the formulation of a Bipartisan Agreement. 4

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14.The 1st Respondent has further asserted that the strike notice dated 27 th October 2025 was lawfully issued in respect of unresolved labour grievances affecting its members. It contends that the failure to implement the agreed matters led to the issuance of the strike notice, with the intended industrial action scheduled to commence on 10th November 2025. The 1st Respondent maintains that the Claimant had failed to follow through on all the matters agreed upon. 15.The 1st Respondent further contends that the press statement issued on 29th November 2025, announcing that the strike would resume on 1st December 2025, was necessitated by the Claimant’s failure to honour its obligations under the Bipartisan Agreement. It maintains that the statement was not issued in bad faith but constituted a lawful communication to its members following the Claimant’s continued failure to act on the agreed matters. 16.Putting the Claimant to strict proof, the 1 st Respondent has denied that the intended strike was illegal or unprotected. It further denies the Claimant’s contention that its members were barred from participating in strike action by virtue of Section 81(3) of the Labour Relations Act. It contends that the Claimant had not demonstrated any imminent danger sufficient in law to warrant the sweeping orders sought. 17.It likewise denies that the intended strike posed a danger to the public, contending, instead, that the Claimant’s failure to remit deductions, pay gratuity and implement 5

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salary increments adversely affected the welfare of its members and undermined service delivery. 18.The 1st Respondent has further denied that the strike was intended to arm-twist or embarrass the Claimant. It avers that the industrial action was, and remains, a legitimate means of compelling compliance with the parties’ agreements and advancing negotiations concerning its members’ rights. 19.It is the 1st Respondent’s position that the intended strike constituted a lawful exercise of the constitutional right guaranteed under Article 41(2)(d) of the Constitution, which confers upon every worker the right to go on strike. 20.The 3rd Respondent has similarly admitted that a series of meetings had been held between the Claimant and its branch officials in Embu County, which meetings culminated in a Bipartisan Agreement/Report in September 2024. 21.The 3rd Respondent further avers that it executed the agreement on its part and forwarded the same to the Claimant for execution and return for purposes of implementation. It has contended that the Claimant’s failure to return the executed Bipartisan Agreement/Report, coupled with its failure to implement the agreed matters, led to the issuance of the strike notice scheduled to take effect on 10 th November 2025. 6

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22.It is the 3rd Respondent’s position that it had issued the requisite statutory notice and that, consequently, the intended strike was, and remains, protected. 23.The 3rd Respondent further avers that Matrixes 1 and 2 had not been fully implemented notwithstanding that provision had been made for their implementation in the 2024/2025 financial year budget. It similarly contends that Matrixes 3 and 4 had not been fully implemented despite having been budgeted for in the 2025/2026 financial year. 24.According to the 3rd Respondent, these matters had been agreed upon and documented in the 2024 Bipartisan Report, with the requisite budgetary provision having been made. It maintains that the issue of the wage bill did not form part of the parties’ discussions and ought not to be introduced after execution of the binding agreement. 25.The 3rd Respondent has further contended that the conversion of contracted employees, particularly medical laboratory officers, on a pro-rata basis, the recruitment of additional staff and continuous promotion ought to be undertaken within the current Government and, in any event, not later than 30th June 2027. 26.It is the 3rd Respondent’s position that the salaries of its officers ought to be harmonised in accordance with the policies of the Salaries and Remuneration Commission, with effect from 20th May 2026. It maintains that the parties had 7

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agreed that the harmonisation would take effect from November 2024, but that the same had not been implemented. 27.The 3rd Respondent further avers that its members had been discriminated against in the issuance of Permanent and Pensionable appointment letters, contending that only two (2) cadres had been issued with such letters. It states that 21 medical laboratory officers who had served between 2007 and 2016 had been left out and ought to be issued with Permanent and Pensionable appointment letters by 4 th June 2026. It further contends that the remaining 33 officers who had served between 2017 and 2025 ought to be issued with their Permanent and Pensionable appointment letters by 7th October 2026. 28.According to the 3rd Respondent, there ought to be no contractual engagement of medical laboratory officers and, where such contractual engagements occur, they should be undertaken in accordance with the guidelines issued by the Salaries and Remuneration Commission. 29.The 3rd Respondent further avers that the Claimant had failed to provide and maintain occupational safety and health measures at the workplace, notwithstanding an agreement to implement the same by February 2026. 30.It further contends that the parties had agreed that the Claimant would procure Work Injury Benefits Act (WIBA) cover, alongside the medical cover, for its employees by February 2026, but that this had not been done. 8

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31.In rejoinder, the Claimant filed responses to the respective Responses by the 1 st and 3rd Respondents. The Claimant avers that the Bipartisan Agreement prescribed different timelines for implementation, including matters designated as immediate, ongoing or continuous, as well as matters whose implementation was scheduled for various dates in 2026. To this end, it contends that not all the agreed matters were due for immediate implementation. In the Claimant’s view, the 1st and 3rd Respondents acted prematurely by issuing the press statement announcing the resumption of the strike on 1st December 2025. 32.The Claimant has reiterated its position that the members of the 1st Respondent provide essential services to the residents of the County and were, consequently, precluded from participating in strike action or lockouts. 33.It maintains that the right to strike guaranteed under Article 41(2)(d) of the Constitution is not absolute and may be limited where there is non-compliance with the requirement for retention of minimum services. 34.With respect to the specific issues raised by the 3 rd Respondent, the Claimant has contended that Kshs. 38,500,000.00 had been provided for in the 2026/2027 financial year budget to facilitate the promotion of 61 officers, 119 officers and all officers who had been left out during the implementation of the first and second matrices under the November 2024 Bipartisan Report. It further avers that an 9

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additional Kshs. 38,500,000.00 had been provided for in the 2026/2027 financial year budget to cater for the remaining 356 officers. 35.The Claimant further asserts that the issue of the wage bill could not be disregarded, maintaining that the right of public servants to fair compensation had to be balanced against the need to ensure that public-sector remuneration remained fiscally sustainable and did not impair the State’s capacity to discharge its obligations for the collective benefit of the population. 36.The Claimant further states that the budgetary provision for the conversion of contracted employees to a pro-rata basis, recruitment of new staff and continuous promotion, as contemplated under the agreement between the parties, would commence under the 2027/2028 financial year budget. 37.With regard to the harmonisation of the salaries of the 3 rd Respondent’s officers in accordance with the policies of the Salaries and Remuneration Commission, the Claimant avers that implementation had commenced in February 2026 through the relevant Ministry. It further states that implementation for the 2025/2026 financial year was intended to commence in July 2025, but that the Claimant was still awaiting approval from the relevant Ministry. 38.The Claimant denies that it has discriminated against members of the 3 rd Respondent in the issuance of Permanent and Pensionable appointment letters, as alleged. 10

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39.The Claimant further avers that it had commenced the process of compiling and submitting a list of all workplaces and premises to the Department of Occupational Safety and Health. It adds that the budgetary allocation for WIBA cover had been increased from Kshs. 10,000,000.00 to Kshs. 15,000,000.00. Submissions 40.It has been submitted on behalf of the Claimant that the right to strike, especially by members of the Respondent unions offering essential services for whatever reason, is prohibited by law. In support of this position, the Claimant has placed reliance on the case of County Government of Kisii v Kenya Medical Practitioners, Pharmacists & Dentists Union (KMPDU) & another (Cause E016 of 2024) [2024] KEELRC 561 (KLR) (14 March 2024) (Ruling). 41.It is further submitted by the Claimant that there was no onus on its part to demonstrate any imminent danger. 42.On its part, the 1st Respondent submitted that they issued a 14-day strike notice dated 27th October 2025, in compliance with Section 76(c) of the Labour Relations Act. That the Claimant acknowledged receipt of the notice and engaged in negotiations, culminating in a Bipartisan Agreement dated 8th November 2025. According to the 1st Respondent, this demonstrates procedural compliance by the Respondents. 11

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43.The 1st Respondent has further posited that the suspension of industrial action for 21 days shows that the unions were not acting in a vacuum, but were allowing room for continued engagement. 44.The 1st Respondent maintains that the unions complied with statutory notice requirements, engaged in negotiations, and suspended action in good faith. It contends that the strike was a last resort after the Claimant failed to honour its commitments. 45.It is the 1st Respondent’s further submission that the Consent Order expressly recognizes unresolved issues harmonization, and Salaries such as the remuneration matrix, salary and Remuneration Commission circular implementation. In the 1st Respondent’s view, this demonstrates that the strike was a legitimate response to unfulfilled obligations, not an unlawful action. 46.To support the submissions of the 1st Respondent, reliance has been placed on the case of Kenya Ferry Services Limited v Dock Workers Union (Ferry Branch) [2015] eKLR. 47.The 1st Respondent has further submitted that they acted in good faith by suspending the strike for 21 days to allow further negotiations on unresolved issues. The 1st Respondent posits that a strike notice, suspension, and ongoing dialogue do not inherently render subsequent actions illegal. 12

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48.It is the 1st Respondent’s further submission that the Claimant has not shown, job by job, that all of the employees are doing work that is clearly against the law when it comes to essential services. 49.The 1st Respondent maintains that its members should retain their constitutional right to strike, subject to lawful procedure. 50.Although the 3rd Respondent uploaded its written submissions onto the online filing portal, it did not pay the requisite filing fee. Consequently, the said submissions were not duly filed. Analysis and Determination 51.Based on the pleadings filed by the parties herein, the evidentiary material on record and the rival submissions, the Court has identified the following issues for determination: a) Whether the strike action undertaken by members of the Respondent unions was illegal and unprotected; b) Whether members of the Respondent unions are prohibited from participating in a strike; Illegal and unprotected strike? 52.It is common ground that the Respondent unions jointly issued a 14-day strike notice dated 27th October 2025, which was subsequently suspended on 8th 13

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November 2025 to allow the parties to pursue further negotiations. It is likewise undisputed that, on 29th November 2025, the Respondent unions issued a joint press statement indicating their intention to proceed on strike from 1st December 2025. 53.The Claimant’s case is that the intended industrial action by the Respondent unions was illegal and unprotected, principally on the ground that the parties had reached agreement on 10 of the 12 issues raised in the strike notice and that the Respondents had themselves indicated their willingness to continue engaging in negotiations. 54.The Respondents, on the other hand, maintain that the intended strike was lawful, having issued the requisite statutory notices. They further contend that the industrial action constituted a lawful exercise of the constitutional right to strike guaranteed under Article 41(2)(d) of the Constitution. 55.The question that therefore falls for determination by this Court is whether the industrial action contemplated by the Respondent unions satisfied the statutory requirements for a protected strike. 56.Section 79(1) of the Labour Relations Act describes a “protected strike” as a strike that complies with the provisions of Part X of the Act. 14

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57.The statutory requirements that must be met for a strike to qualify as protected are set out under Section 76 of the Labour Relations Act as follows: [76]A person may participate in a strike or lock-out if— (a)the trade dispute that forms the subject of the strike or lock-out concerns terms and conditions of employment or the recognition of a trade union; (b)the trade dispute is unresolved after conciliation— (i)under this Act; or (ii)as specified in a registered collective agreement that provides for the private conciliation of disputes; and (c)seven days written notice of the strike or lock-out has been given to the other parties and to the Cabinet Secretary by the authorised representative of — (i)the trade union, in the case of a strike; (ii)the employer, group of employers of employers’ organisation, in the case of a lock-out. 58.In a nutshell, for a strike to qualify as a protected strike, it must satisfy the following statutory requirements: a) The trade dispute forming the subject of the strike concerns terms and conditions of employment or recognition of a trade union. b) The trade dispute was referred to conciliation but was not resolved. 15

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c) Seven days' written notice was issued to the other party and the Cabinet Secretary by the authorized representative of the trade union. 59.In the present case, it is apparent that the trade dispute giving rise to the intended industrial action concerns terms and conditions of employment. 60.It is, however, evident that whereas the initial strike notice dated 7 th October 2025 was issued 14 days in advance, thereby satisfying the minimum statutory notice period prescribed under Section 76(c) of the Labour Relations Act, the subsequent communication made through a press statement on 29 th November 2025 fell short of the statutory threshold, as it contemplated the commencement of the strike on 1 st December 2025. 61.As of 29th November 2025, when the Respondent unions issued the joint press statement notifying the public of their intention to proceed with the industrial action on 1st December 2025, the character of the trade dispute had materially changed. This is for the reason that 10 of the 12 issues identified in the initial strike notice dated 7th October 2025 had been resolved, and the parties had, in fact, executed a Bipartisan Agreement on 8th November 2025. 62.It is this Court’s considered view that, once 10 of the 12 issues forming the basis of the initial strike notice dated 7 th October 2025 had been resolved, and the intended strike had subsequently been suspended to facilitate further negotiations, the initial 16

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strike notice was spent. Therefore, it could not be relied upon as the statutory notice for the subsequent industrial action contemplated to commence on 1st December 2025. 63.Accordingly, it was incumbent upon the Respondent unions to issue a fresh written strike notice in strict compliance with Section 76 of the Labour Relations Act. 64.Such compliance required the Respondent unions to give the requisite 7-day written notice and to formally notify both the Claimant and the Cabinet Secretary responsible for labour matters through an authorised representative of the unions. 65.The fresh notice ought also to have identified the outstanding grievances forming the basis of the intended industrial action. This requirement is vital given that a strike notice serves, among other purposes, to communicate the demands underlying the proposed industrial action and to afford the employer an opportunity to make an informed decision on whether to accede to those demands or otherwise engage with the union in an attempt to resolve the dispute. 66.I must add that the joint press statement issued by the Respondent unions on 29 th November 2025 did not constitute the written statutory notice contemplated under Section 76(c) of the Labour Relations Act. A public announcement of an intention to resume industrial action cannot substitute the formal statutory notice required by law. 17

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67.It is further worth noting that the Respondents did not report the trade dispute to the Cabinet Secretary responsible for labour matters for conciliation, as contemplated under Section 62 of the Labour Relations Act, before proceeding with the intended industrial action. 68.If, following the negotiations between the parties, the outstanding grievances remained unresolved, the Respondents were required to invoke the statutory conciliation process contemplated under Section 62 of the Labour Relations Act before resorting to industrial action. 69.In the final analysis, the Court finds that the industrial action called by the Respondent unions through the joint press statement of 29th November 2025 was illegal and unprotected, the Respondents having failed to comply with the statutory procedure prescribed under Section 76 of the Labour Relations Act. Prohibited strike? 70.The second limb of the Claimant’s case is that members of the Respondent unions are prohibited from participating in industrial action by virtue of the nature of the services they provide, being employees in the health sector and, consequently, providers of essential services within the meaning of Section 81 of the Labour Relations Act. 18

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71.The 1st and 3rd Respondents have disputed this contention. They maintain that the industrial action constitutes a lawful exercise of their members’ constitutional right to strike as guaranteed under Article 41(2)(d) of the Constitution. 72.Indeed, Article 41(2)(d) of the Constitution guarantees every worker the right to go on strike. 73.The right to strike, however, is not among the rights declared absolute under Article 25 of the Constitution. Accordingly, it is a right that may be limited in accordance with Article 24 of the Constitution, provided that the limitation is reasonable and justifiable. 74.As regards the statutory limitation of the right to strike, Section 78(1)(f) of the Labour Relations Act provides as follows: [78] (1) No person shall take part in a strike or lock-out or in any conduct in contemplation of a strike or lock-out if— …………… (f)the employer and employees are engaged in an essential service; 75.In addition, Section 81(3) of the Labour Relations Act expressly provides that there shall be no strike or lock-out in an essential service. 76.As regards what constitutes an essential service, Section 81(1) of the Labour Relations Act describes an essential service as a “service the interruption of which 19

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would probably endanger the life of a person or health of the population or any part of the population.” 77.The Fourth Schedule to the Labour Relations Act identifies various services as essential services, among them hospital services. 78.It follows from the foregoing statutory provisions that the right to strike in respect of essential services, including hospital services, is expressly restricted under the Labour Relations Act. 79.In the present case, it is not in dispute that the members of the 1 st and 3rd Respondents are engaged in the provision of health services. Accordingly, by dint of Sections 78(1)(f) and 81(3) of the Labour Relations Act, their right to participate in industrial action is statutorily restricted. 80.However, in light of the evolving nature of labour relations, a broader question arises as to whether it is realistic and sustainable to impose a permanent prohibition on the right to strike in essential services. 81.As was held by the Court in Kenya Ferry Services Limited v Dock Workers Union [Ferry Branch] [2015] KEELRC 1656 (KLR), the right to strike is a fundamental component of effective and stable collective bargaining. Through strike action, employees are able to advance and protect their economic and social interests and seek resolution of labour disputes. The Court rightly observed that industrial 20

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action, particularly in sectors providing essential services, may have significant implications for the public and the national economy. Accordingly, the exercise of the right to strike must be balanced against the fundamental rights and interests of others, including the public’s right to access essential services. 82.On this score, I concur with the Court’s holding that there are traditionally less restrictive means of regulating industrial action and that the focus ought to be directed towards mitigating the effects of a strike when it occurs, rather than seeking to prevent industrial action altogether. 83.To strike a balance between the right of employees engaged in essential services to exercise their right to strike and the public’s corresponding right to access essential services, emerging jurisprudence favours a framework in which employers and employees negotiate and agree on a Minimum Service Agreement, which may be incorporated into a Collective Bargaining Agreement or Recognition Agreement. 84.Such an agreement should specify the minimum number or proportion of employees required to remain on duty during industrial action; identify the categories of essential services that must continue uninterrupted; prescribe the minimum level of service to be maintained during the strike; and include an undertaking by the employer not to engage replacement labour for employees participating in the industrial action. 21

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85.In the instant case, there is no indication or suggestion that the parties made any special arrangements under their respective Recognition Agreements or Collective Bargaining Agreements to ensure the continued provision of minimum health services during the period of industrial action. 86.Indeed, it is notable that, in the joint press statement dated 29th November 2025, the Respondent unions stated that normal services, including health services in all the Claimant’s facilities, would be severely disrupted. The Respondent unions accordingly advised members of the public to consult clinicians regarding the safe discharge of patients, where medically appropriate; transfer patients to alternative health facilities; and ensure that persons suffering from chronic illnesses had adequate medication before the commencement of the industrial action. 87.In the Court’s view, the foregoing communication is indicative of the absence of any agreed mechanism between the parties for maintaining minimum health services during the period of the intended industrial action. The absence of such an arrangement, in this case, further rendered the intended industrial action impermissible. 88.Be that as it may, and for the reasons set out above, the Court is hesitant to hold that members of the Respondent unions are, in all circumstances, prohibited from exercising their constitutional right to engage in industrial action. For future purposes, however, the parties are urged to negotiate and put in place a Minimum 22

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Service Agreement to regulate the provision of essential services and the conduct of any future industrial action. Orders 89.In view of the foregoing, the Court finds that the Claimant has proved its case on a balance of probabilities and accordingly makes the following orders: a) A declaration is hereby issued that the strike called by the Respondent unions through the joint press statement dated 29th November 2025 was illegal and unprotected. b) In view of the subsisting interim orders suspending the industrial action, members of the 1st and 3rd Respondent unions shall continue discharging their respective duties. c) There shall be no order as to costs. DATED, SIGNED and DELIVERED at NYERI this 25th day of September 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: For the Claimant Ms. Kinyua instructed by Mr. Kimani For the 1st Respondent Mr. Ombayo together with Mr. Odongo For the 3rd Respondent Mr. Ooga 23

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Court Assistant Ndati ORDER In view of the declaration of measures restricting court operations due to the COVID19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21 st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 24

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