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ELRCDismissedJudicial Review Application No. E006 of 2026

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

Employment and Labour Relations Court of Kenya
30 September 2026
2,176 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Kenya National Union of Nurses and Midwives applied, under Article 23 of the Constitution, Order 53 of the Civil Procedure Rules and section 9 of the Law Reform Act, for mandamus compelling the County Government of Machakos to comply with a decree of 3 February 2026, certiorari to quash its refusal to implement the decree, and a declaration that the non-compliance breached Article 232(1)(c) and the Fair Administrative Action Act. The decree arose from a return-to-work agreement after a nurses' strike, adopted as a consent order on 28 August 2025 in Petition E011 of 2025, requiring nursing service and uniform allowance increments, enhancement of the health risk allowance, CBA negotiations, hiring of 500 nurses, and payment of promotional arrears. The respondent admitted the decree and its obligation but attributed non-compliance to the complexity of the obligations, budgetary cycles, and SRC constraints, noting an SRC letter of 20 April 2026 approving only the health risk allowance. The respondent did not file a reply but submitted that a structured, supervised implementation timeline was preferable to coercive orders. The court, restating that judicial review is confined to legality, rationality and procedural propriety, held that the consent order lacked material particulars - a timeline, implementation framework and default clause - and that the applicant had not identified the accounting officers to be sanctioned. All orders sought were refused; the parties were directed to return to the shop floor to agree on timelines and framework under a court-monitored process, with a return date of 29 October 2026, and no orders on costs were made for industrial peace.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an order of mandamus should issue compelling the respondent to comply with the decree dated 3 February 2026
  2. 2.Whether an order of certiorari should issue to quash the respondent's withholding, delay or decline to implement the decree
  3. 3.Whether the respondent's failure to comply breaches the applicant's constitutional rights under Article 232(1)(c) and the Fair Administrative Action Act

Key legal issues

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01

Whether mandamus lies to compel implementation of a consent order/decree containing complex non-monetary obligations

Holding

Mandamus was refused; the consent order lacked a timeline, implementation framework and default clause, and no responsible accounting officers were identified for sanction

Reasoning

The court accepted the respondent's admission of non-compliance but held that the decree's obligations required inter-departmental coordination, budgetary processes and SRC engagement. The applicant failed to identify the accounting officers to be sanctioned, and the consent order lacked material particulars, making coercive orders impractical.

p. 7
02

Scope of judicial review jurisdiction in enforcing a decree against a public body

Holding

Judicial review is confined to legality, rationality and procedural propriety; the court should not descend into the arena or substitute its decision for that of the public body

Reasoning

Relying on Grain Bulk Handlers and Gibb Africa, the court restated that judicial review regulates the decision-making process and its subject matter is legality. Once a decision passes the three tests, the court has no business taking further steps.

p. 6
03

Effect of a consent order lacking a default clause and implementation timeline

Holding

The absence of a default clause and timeline left the respondent's motivation to address the consent order open, justifying a negotiated framework rather than coercive orders

Reasoning

The court found the consent order lacked material particulars including a time frame and implementation framework. Both parties were held equally liable for this defect, and the cause of action was preserved for a court-monitored process.

p. 7

Legal principles established

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  • Judicial review jurisdiction is concerned with the legality of decisions and the process by which decision-making powers are exercised, not with substituting the court's view for that of the public body
  • In judicial review the court applies only the tests of legality, rationality and procedural propriety and must not descend into the arena

Court orders

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  1. 1.The orders sought (mandamus, certiorari, declaration) shall not issue
  2. 2.The parties shall return to the shop floor and agree on the consent order's timelines and framework
  3. 3.A court-monitored process shall suffice
  4. 4.The parties to return and address the court on 29 October 2026
  5. 5.No orders on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 23 of the Constitution; Order 53 of the Civil Procedure Rules; Section 9 of the Law Reform Act

Relief refused

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Order of mandamus compelling compliance with the decree of 3 February 2026

The consent order lacked material particulars, a time frame and implementation framework; no responsible accounting officers were identified for sanction

p. 7

Order of certiorari to quash the respondent's decision to withhold or delay implementation

The respondent did not deny the decree was issued; inter-departmental engagement is needed to facilitate implementation

p. 5

Declaration of breach of Article 232(1)(c) and the Fair Administrative Action Act

Not granted; the court found the application justified but directed a negotiated, court-monitored implementation framework instead

p. 7

Costs of the application

For industrial peace

p. 7

Costs

For industrial peace, no orders on costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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.
p. 7Final orders - refusal of mandamus and certiorari, direction to negotiate timelines
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.
p. 6Purpose of judicial review jurisdiction
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
p. 6Limits of judicial review - three tests
The applicant's application is justified; the consent order lacked material particulars. A time frame and implementation framework.
p. 7Defect in the consent order
For industrial peace, no orders on costs.
p. 7Costs order

Issues in the judgment

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minor

Return date (29 October 2026) precedes nothing but is stated after delivery date of 30 September 2026; internally consistent but the application is dated 6 May 2026 while described as 'this ruling relates to'

minor

Typographical error referring to 'the Court of Finance' instead of a government department

minor

Affidavit seeks committal orders and a jail term not exceeding 6 months, but no formal contempt application is recorded as before the court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "The Kenya National Union of Nurses and Midwives v The County Government of Machakos", Case Analysis (2026). Judicial Review Application No. E006 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2691/eng@2026-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.