Court halts Nairobi County hiring of casual, locum health workers pending case

The Employment and Labour Relations Court has stopped Nairobi County from recruiting casual and locum health workers into a countywide pool pending the hearing of a legal challenge.

Justice Ocharo Kebira issued the conservatory order on August 10, restraining Nairobi County and its County Public Service Board from recruiting into the County Casual and Locum Pool established under the Policy on Engagement and Management of Casual and Locum Personnel in the County Public Service.

The order followed an urgent application by the Kenya Medical Practitioners, Pharmacists and Dentists' Union (KMPDU) and Kingori Nderitu, who want the entire policy declared unconstitutional.

At the centre of the dispute is pay. The policy sets locum rates of Sh120,000 a month for medical officers and Sh230,000 for consultants and specialists, figures KMPDU says fall below what Nairobi County agreed to under the 2017 Collective Bargaining Agreement (CBA) and subsequent Return-to-Work Formula.

The union argues that the difference creates two pay scales for doctors doing substantially similar clinical work depending on whether they are permanent staff or locums, violating constitutional protections on equality and fair labour practices.

KMPDU also says the Nairobi City County Assembly never scrutinised or approved the policy, arguing that this made the framework procedurally defective under Article 47 of the Constitution and the Fair Administrative Action Act.

The petition also accuses the County Public Service Board of exceeding its mandate by setting remuneration rates, which the petitioners argue falls within the constitutional mandate of the Salaries and Remuneration Commission (SRC).

Justice Jemimah Keli certified the matter urgent on July 30 but declined to suspend the policy without first hearing the county, instead directing the parties to canvass the matter through written submissions.

Kebira's order now specifically blocks new recruitment into the pool while the application is heard. It does not determine the wider constitutional challenge to the policy.

The policy, approved by the County Public Service Board on June 24, centralises the recruitment and management of temporary personnel under the board and caps such workers at 10 per cent of a department's approved establishment.

Departments seeking temporary workers must apply to the board and justify the need, including the number required, duration, funding source, budget availability, duty station and nature of the work.

Tensions escalated after a July 14 circular from the Chief Officer Medical Services directed county health officials to enforce the policy, with engagements outside the framework not recognised or remunerated.

KMPDU argued that the circular moved the policy from paper into active implementation, prompting the union and Nderitu to move to court.

The respondents have 10 days from service of the application to respond, followed by submissions from both sides.

The matter will return to court on September 21 for further directions.