Win for KMPDU as court stops Nairobi County recruitment of casual, locum health workers

The Employment and Labour Relations Court in Nairobi has temporarily stopped the Nairobi County government from recruiting casual and locum personnel into a newly established County Casual and Locum Pool, dealing a fresh blow to the county’s controversial policy governing temporary health workers.

Justice Ocharo Kebira, sitting at the Nairobi Employment and Labour Relations Court, on August 10, 2026, issued a conservatory order restraining Nairobi County and the County Public Service Board from recruiting casual and locum personnel into the pool advertised under the disputed Policy on Engagement and Management of Casual and Locum Personnel in the County Public Service.

The order was issued after the court certified as urgent a Notice of Motion and Chamber Summons filed by the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPDU) and Kingori Nderitu.

The court directed that the application be served within three days, with the respondents required to file their response within 10 days of service.

The applicants will then have seven days to file their submissions, followed by a further seven days for the respondents to respond.

The matter will come up on September 21, 2026, when the court is expected to give further directions, including fixing the application for ruling.

The order comes days after another judge handling the same dispute declined to suspend the policy without first hearing the parties.

On July 30, Justice Jemimah Keli certified the matter urgent but declined to grant a stay of the policy in the absence of the parties.

Instead, she directed the petition and application to be canvassed through written submissions and ordered the respondents to respond within 14 days. The case was scheduled for mention on September 21.

The latest order therefore does not amount to a final determination that the entire policy is unconstitutional. Rather, it temporarily stops the specific recruitment into the County Casual and Locum Pool pending the hearing of the application.

The substantive petition, in which KMPDU and Nderitu are seeking to have the policy declared unconstitutional and quashed, remains pending.

The dispute centres on a policy approved by the Nairobi County Public Service Board at a meeting held on June 24, 2026.

The policy was presented as a framework for bringing the recruitment, deployment, management, remuneration, welfare, discipline and separation of casual and locum personnel under a centralised system controlled by the County Public Service Board.

According to the policy document, the Board would retain overall authority over the engagement of casual, locum and other temporary personnel, with county departments barred from independently recruiting, deploying or remunerating such workers outside the prescribed framework.

The policy says its objectives include ensuring compliance with the Constitution and employment laws, safeguarding the recruitment mandate of the Public Service Board, eliminating unauthorised recruitment by individual departments, improving accountability in the use of public resources and protecting the welfare and rights of casual and locum personnel.

It also establishes a county-wide pool of pre-qualified casual and locum personnel from which departments and health facilities would draw temporary staff.

Under the framework, the Board is to periodically advertise opportunities for inclusion in the pool, conduct competitive recruitment, verify qualifications and maintain a county-wide database.

Departments requiring temporary personnel are required to make a formal request to the Board, justify the need and provide details including the number of workers required, duration, funding source, budget availability, duty station and nature of the work.

The policy further limits temporary engagements to genuine short-term staffing needs, including temporary vacancies, staff absence, emergencies, seasonal workload fluctuations, short-term projects and specialised assignments.

It states that casual and locum workers should supplement, rather than substitute, approved permanent positions and bars their use to circumvent established recruitment procedures or create an expectation of permanent employment.

The total number of temporary personnel in a department, facility, project or county entity is also capped at 10 per cent of its approved establishment.

The policy provides for written contracts for locum personnel, setting out the duration, remuneration, duty station, reporting arrangements and scope of duties. Any renewal requires prior approval by the Public Service Board.

It is the policy's remuneration structure that has emerged as one of the central battlegrounds in the court case.

The attached remuneration schedule provides for a monthly rate of Ksh.230,000 for consultants and specialists and Ksh.120,000 for medical officers serving as locums.

It also sets rates for other health professionals, including Ksh.65,000 for specialist nurses and nurse-degree holders, Ksh.50,000 for diploma nurses, Ksh.40,000 for certificate nurses, Ksh.60,000 for specialist clinical officers and Ksh.40,000 for diploma clinical officers.

Sonographers and radiographers at Level 5 are listed at Ksh.65,000, while biomedical technicians, laboratory technologists, pharmaceutical technologists, physiotherapists and nutritionists at specified levels are listed at Ksh.50,000.

The policy says payments are to be based on actual hours worked and verified attendance, processed through the county payroll and subjected to statutory deductions. No payment is to be made without a signed contract and verified attendance records.

But KMPDU has challenged the rates, arguing that the Ksh.120,000 monthly rate for medical officers and Ksh.230,000 for consultants and specialists are materially below remuneration rates negotiated with Nairobi County under the 2017 Collective Bargaining Agreement (CBA) and subsequently affirmed through the 2017 Return-to-Work Formula.

The union says this creates a two-tier system in which doctors performing substantially the same clinical duties could receive different remuneration depending on whether they are substantively employed or engaged as locums.

KMPDU and Nderitu argue that such an arrangement violates the constitutional right to equality and freedom from discrimination under Article 27, the right to fair labour practices under Article 41 and provisions of the Employment Act requiring equal remuneration for work of equal value.

Beyond the remuneration dispute, the petition attacks the process through which the policy was adopted.

KMPDU and Nderitu claim the policy was never tabled before, scrutinised by or approved by the Nairobi City County Assembly.

They argue that the failure to subject the policy to the legislative process rendered it procedurally defective and incapable of lawful implementation.

The petition specifically invokes Article 47 of the Constitution and the Fair Administrative Action Act, which require administrative action to be lawful, reasonable and procedurally fair.

The petitioners further contend that the Public Service Board exceeded its mandate by effectively setting salaries and other remuneration benefits for health workers.

They argue that Article 230 of the Constitution gives the Salaries and Remuneration Commission (SRC) the mandate to set remuneration for state officers and advise national and county governments on remuneration for other public officers.

The petition consequently names the SRC as an interested party alongside the Nairobi County Government, the County Public Service Board, the County Secretary, the Speaker of the County Assembly, the County Executive Committee Member for Health and the Chief Officers responsible for health facilities and medical services.

The court documents show that the dispute escalated after a July 14 circular directed county health officials to enforce the policy.

According to the petition, the Chief Officer Medical Services directed Chief Executive Officers and county facility managers to ensure strict compliance, with engagements outside the prescribed framework not to be recognised or remunerated.

The petitioners say the directive effectively moved the policy from paper into active implementation, creating an immediate threat to doctors and other health workers who depended on locum engagements.

They subsequently moved to court on July 28 seeking, among other orders, a conservatory order stopping the county from implementing, operationalising or enforcing the policy and from relying on the July 14 circular.

They also want the court to ultimately declare the policy unconstitutional, null and void, permanently restrain the county from enforcing it and issue an order of certiorari quashing both the policy and the July 14 circular.

The first application encountered a cautious response from Justice Keli on July 30.

Although she certified the matter urgent, she declined to issue a stay of the policy without hearing the parties. Instead, she ordered the respondents to be served and directed the parties to canvass the application and petition through written submissions.

Justice Kebira has now granted a conservatory order specifically stopping recruitment into the County Casual and Locum Pool pending the hearing of the application.

The order carries a penal notice warning that disobedience or non-observance may attract penal consequences.

The court has not, however, finally pronounced itself on whether the policy is constitutional, whether the remuneration rates amount to discrimination or whether the County Public Service Board acted outside its legal mandate.