Nyeri, Kenya — October 9, 2024: A landmark ruling by the Employment and Labour Relations Court in Nyeri has declared the strike by healthcare workers in Meru County unlawful, citing violations of the Constitution and failure to comply with existing labour laws.
The judgment, delivered by Justice Onesmus N. Makau, ordered all striking doctors, clinical officers, and nurses to immediately resume duty, following a protracted industrial action that has paralyzed health services in the county for over two months.
Background of the Strike
The strike, initiated by the Kenya Medical Practitioners Pharmacists and Dentists Union (KMPDU), Kenya Union of Clinical Officers (KUCO), and the Kenya National Union of Nurses (KNUN), began after the issuance of strike notices on various dates in July and August 2024.
The healthcare workers demanded the implementation of a negotiated agreement with the Meru County government, which they claimed had been breached.
The agreements, signed in October and November 2023, focused on salary increments, promotions, and other labor-related concerns. Despite multiple meetings between the unions and county officials, including those on August 29 and 30, 2024, no immediate resolution was reached, prompting the workers to strike.
Violation of Labour Laws
In its ruling, the court emphasized the importance of maintaining “minimum service” during industrial action, especially in essential sectors such as healthcare.
Justice Makau cited Section 81 of the Labour Relations Act, which prohibits strikes in essential services unless minimum services are guaranteed to safeguard public health and safety.
The court further referenced the 2017 judgment in the Joseph Otieno Oluoch case, which established the legal requirement for such services during strikes.
The court found that the striking healthcare workers did not comply with this requirement, leaving no personnel to attend to emergency cases or critical health services.
As a result, the strike violated the rights of the residents of Meru County, particularly the right to life, dignity, and the highest attainable standard of health, enshrined in Articles 26, 28, and 43 of the Constitution of Kenya, 2010.
Justice Makau also noted that despite the unions’ claims that some officers were left on duty to provide essential services, no evidence was presented to support this assertion. The complete withdrawal of services, the court ruled, constituted a breach of both the Labour Relations Act and the Bill of Rights.
Change in Circumstances
While the court acknowledged that the grievances raised by the healthcare workers were initially valid, it noted that the circumstances had since changed.
The court found that significant progress had been made by the Meru County Public Service Board (CPSB) and the county government in addressing the workers’ concerns.
Salaries had been paid using borrowed funds, promotions had been initiated, and budget allocations for these measures had been approved for the current financial year.
Given these developments, the court held that the continuation of the strike was no longer justified. “The grievances raised have since been addressed or are in the process of being addressed,” Justice Makau ruled, adding that the strike had therefore lost its legal and moral justification.
Court Orders
In his final judgment, Justice Makau issued several key orders:
- Strike Deemed Unlawful: The court declared that the strike by the Meru County healthcare workers, led by KMPDU, KUCO and KNUN, was unlawful due to the failure to provide minimum service during the strike period.
- Constitutional Violations: The court found that the strike violated Articles 26, 28, and 43 of the Constitution, which protect the right to life, dignity and health, respectively.
- Order for Immediate Resumption of Duties: Although the court did not issue a formal writ of mandamus, it emphasized that the striking healthcare workers must report back to work immediately, as their strike had become unprotected under the law.
- No Cost Penalty: Despite the unlawful nature of the strike, the court refrained from condemning the unions to pay costs, acknowledging that the strike had been triggered by delays on the part of the petitioner, the Meru County government.
The Way Forward
Justice Makau’s ruling also highlighted the ongoing challenge of balancing the right to strike with the need to protect essential services. He urged the relevant stakeholders, including the Cabinet Secretaries in charge of Health and Labour, to develop guidelines for managing strikes in essential sectors.
Such guidelines, he suggested, would ensure that the right to strike—guaranteed under Article 41(2)(d) of the Constitution—can coexist with the rights to life and health.
“It is imperative that the law or collective bargaining agreements (CBAs) or human resource policy manuals be formulated to provide for minimum service during strikes in essential service sectors,” Justice Makau said.
While the court recognized the workers’ legitimate grievances, it made it clear that their failure to adhere to the legal framework for strikes in essential services could not be overlooked.
The judgment was delivered through a virtual Teams video conferencing session, with all parties consenting to waive compliance with the Employment and Labour Relations Court (ELRC) Procedure Rules that require judgments to be delivered in open court.
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