Kenya Union of Clinical Officers v Public Service Commission & others
The bottom line
#Kenya's employment court ruled that UHC clinical officers on rolling short-term contracts must have their employment terms regularised, with both national and county governments responsible.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.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.
- 2.Whether the Honourable Court can rewrite the fixed term contracts of the members of the Petitioner engaged under the Ministry of Health Coverage Programme.
- 3.Whether the Respondents violated the right to fair labour practices under Article 41 of the Constitution and national labour standards.
- 4.Whether the Respondents' actions violated the principle of equality and non-discrimination under Article 27 of the Constitution.
- 5.Whether the Respondents/interested parties' actions breached the Petitioner's right to fair administrative action under Article 47 of the Constitution.
- 6.Whether the Petitioner is entitled to the relief sought.
Key legal issues
#Employer-employee relationship under the UHC programme
The Ministry of Health, supported by the Public Service Commission, is the actual employer; the relationship is tripartite with the counties.
The facts were undisputed: the PSC recruited the officers under the Ministry of Health UHC programme, the Ministry was listed as employer in the HRIS, and implementation control remained with the national government entities. The counties received and issued contracts as directed. The court therefore held both levels of government jointly and severally responsible and rejected the PSC's attempt to evade responsibility.
Whether the court can rewrite fixed-term contracts
The court cannot rewrite the contracts, but the prolonged short-term engagement amounted to an unfair labour practice under Article 41.
Relying on the Court of Appeal decision in Kenya County Government Workers' Union v Embu County Government, the court held that long continuous service on rolling short-term contracts entitles workers to statutory protection, and that recommending short-term contracts circumvented fair labour rights. The court adopted the Embu regularization order.
Discrimination and equal pay for equal work
Not proved; the claim failed for want of evidence.
The petitioner asserted that UHC clinical officers were paid less than county peers with the same qualifications and roles, but placed no comparative evidence before the court. Following the Embu County Government decision, the court held that allegations and assertions must be backed by evidence, failing which no finding of discrimination under Article 27 could be made.
Mandamus and separation of powers
Mandamus cannot compel budgetary appropriation or dictate the mode of performing a discretionary duty.
The 12th Respondent relied on Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge, where the Court of Appeal held that mandamus cannot compel performance of a duty in a specific way where the law leaves discretion as to mode. The court agreed with that submission but still issued a regularization order modelled on the Embu decision.
Legal principles established
#- An employer cannot retain employees under rolling short-term contracts for long periods; doing so is a deliberate circumvention of labour protections and violates Article 41.
- Where a national programme recruits and controls workers deployed to counties, a tripartite employment relationship arises and both levels of government are jointly and severally responsible.
- Allegations of discrimination must be backed by evidence; the burden lies on the party alleging it.
Court orders
#- 1.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.
- 2.Each party to bear its own costs in the petition.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 23(1) and 23(3) of the Constitution of Kenya, 2010, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Relief refused
#Mandamus directing payment of gratuities for four years served under the UHC programme per Gazette Notice No. 8091
The Gazette Notice was not annexed and the contracts of employment were complete on their own terms.
Declaration that the IGRTC summit deliberations of 24th March 2023 are unconstitutional
The record of the deliberations was not produced, so no finding could be made.
Mandamus compelling remittance of deducted NSSF contributions
Remittance is a statutory duty and no evidence of non-compliance was adduced.
Claims of discrimination and unequal pay under Article 27
The petitioner failed to discharge its burden of proving discrimination.
Costs
No order as to costs; each party to bear its own costs in the petition.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
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.
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.
This was a tripartite employment relationship for which both national and county governments must be held jointly and severally responsible.
Each party to bear its own costs in the petition.
The petitioner had the burden of proving discrimination.
Issues in the judgment
#Only one interested party (SRC) on title, but judgment repeatedly refers to 1st, 2nd and 3rd interested parties.
Summit resolution date inconsistently stated across the judgment.
Prayers and pleadings refer to 47 Respondents though only four respondents are named on the title.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Clinical Officers v Public Service Commission & others", Case Analysis (2026). Constitutional Petition No. E153 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2653/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.