NICHOLAS OKUMU: What Ndung'u opinion means for doctors' CBA

A few months ago, I wrote about the court ruling concerning the Collective Bargaining Agreement signed by the doctors’ union and the government.

At the time, I approached the issue with the limited legal expertise I possessed, aiming to present it in a way that made sense to the everyday Kenyan—the common mwananchi.

Today, however, I want to revisit this topic from a more nuanced legal perspective, guided by a recent opinion presented by Justice Njoki Ndung’u.

Her insights shed light on how courts should handle declarations of unconstitutionality, offering a framework that, if applied consistently, might have led to a different and perhaps fairer outcome for Kenya’s doctors.

In 2017, the government and the doctors’ union shook hands on a CBA, setting out clear terms for salaries, working conditions and benefits.

Fast forward to 2025, and that agreement suddenly seemed as optional as a receipt at a roadside kiosk.

The recent court ruling implied that the government could reinterpret or renegotiate the CBA unilaterally, effectively turning a binding contract into a mere suggestion.

For the doctors—and for anyone who believes that a promise, especially one enshrined in a legal contract, should mean something—this ruling was a gut punch.

But what if the court had applied the principles outlined by Justice Ndung’u? One of her key messages was that legally binding agreements should not be unilaterally altered unless all parties involved agree.

You know, like how you cannot just decide to change the terms of your rent agreement halfway through the lease because you suddenly prefer a lower figure.

She also warned against the dangers of abrupt legal changes, which can create administrative chaos and disrupt the lives of ordinary people.

When declaring laws unconstitutional, she argued, courts should aim for fairness, stability and predictability—ideals that seem to have been lost in the recent doctors’ ruling. So, what might have happened if the court had taken a different approach?

According to Justice Ndung’u’s opinion, the court could have issued a structural interdict (a court order requiring specific corrective actions under supervision) instead of outright dismissing the doctors’ claims.

This would have meant instructing the government to honour the CBA while giving it a reasonable timeframe to address any valid concerns.

Think of it like telling a store owner, “You can’t change the price of bread overnight without notice—give your customers some time to adjust.”

Additionally, the court could have maintained the status quo, preserving the doctors’ agreed-upon pay until a new agreement was legally established.

While keeping hospitals functional is crucial, so is treating doctors fairly.

Justice Ndungu’s approach would have helped strike that balance, ensuring neither side felt like they had been left out in the cold. This isn’t just a doctors’ problem; the implications run deeper. This ruling sets a precedent.

If a legally binding agreement with the government can be turned into a suggestion, what stops this from happening to your employment contract, your pension or even your mortgage terms? If we accept that agreements can be changed unilaterally, then none of us is truly secure.

It’s like living in a world where a contract means as much as a promise made by a Nairobi matatu conductor—secure only until the next stop.

Justice Njoki Ndungu’s opinion was not just legal theory; it was a practical guide to fair judicial practice. The court had the opportunity to suspend any invalid parts of the CBA (a method known as suspension of invalidity, where the court delays the legal effect of its decision to avoid chaos), allowing doctors to receive their promised pay while the government worked through any issues legally.

Instead, what we got was a decision that felt like being promised a hot cup of tea, only to be served lukewarm water— unfulfilling and leaving a bad taste in your mouth.

Doctors, unions and indeed all of us need to push for clarity and fairness in legal interpretations.

A legally binding agreement must mean exactly that—binding. And when courts are called upon to interpret these agreements, they should do so with a sense of justice and a recognition of the real-world implications.

I urge the doctors’ union to revisit this issue in higher courts to reset the precedent.

Okumu is a Surgeon, writer and advocate of healthcare reform and leadership in Africa.