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ELRCPartially AllowedPetition No. 41 of 2015· [2015] KEELRC 150 (KLR)

Henry Ochido v NGO Co-ordination Board [2015] KEELRC 150 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
12 November 2015
MMM. Mbaru
9,874 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers can transfer staff, but must consult and give reasonable notice, or pay compensation.

What this practically means

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Executive summary

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The petitioner, employed by the NGO Co-ordination Board from 2004 and last serving as Head of Operations, Compliance and Research (acting as Deputy Executive Director for three months), was by letter of 4 March 2015 relieved of the acting position and transferred to the Kisumu regional office with immediate effect. He complained of lack of hearing, notice, reasons and consultation, alleged demotion, and later resigned claiming constructive dismissal. He sought declarations of violation of Articles 27, 41, 47 and 50, twelve months' salary compensation, exemplary damages, pension dues and costs. The respondent justified the transfer as an employer's prerogative and alleged the petitioner resisted it to continue a private consultancy business in conflict of interest. The court held that transfer is a management prerogative, but that under section 10 of the Employment Act changes to employment terms, including work station, require consultation and written notice; the immediate transfer without consultation was arbitrary and procedurally unfair. There was no demotion, no legitimate expectation of confirmation, and no constructive dismissal – the petitioner failed to prove intolerable conditions, and his conduct of taking successive leaves and disappearing after filing the petition told against him. The respondent's conflict-of-interest allegations were found true but raised in bad faith having never been disciplined. The claim for a refund of transfer allowance and notice pay failed both on substance and because it required a cross-petition. The petition succeeded only on procedural unfairness, with compensation of three months' salary, 50% costs, subject to tax deductions.

Key legal issues

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01

Whether the transfer of the petitioner violated his rights

Holding

The transfer was lawful in substance but procedurally unfair; there was no reasonable notice, no prior consultations, and changes to terms of employment were contrary to section 10 of the Employment Act

Reasoning

The court accepted that transfer is an employer's prerogative, but section 10 of the Employment Act mandates consultation and written notification where particulars of employment change. The petitioner, a senior officer acting as Deputy Executive Director, was entitled at minimum to prior consultation to organise himself and his family. The immediate transfer without timeline or consultation was arbitrary and an unfair labour practice, amounting to procedural unfairness.

p. 9
02

Whether the petitioner was demoted

Holding

No demotion; the petitioner retained his substantive position of Head of Operations, Compliance and Research with the same terms, and had no entitlement to confirmation as Deputy Executive Director

Reasoning

The petitioner was only acting in the Deputy Executive Director position, which belonged to Mr Ogombe who had been recalled to Nairobi. Acting capacity creates no entitlement to confirmation. The claim that the Kisumu office was of 'lower stature' was held to be subjective and lacking rational basis, as the nature of work and terms remained the same.

p. 10
03

Whether the petitioner was constructively dismissed

Holding

No constructive dismissal; the petitioner failed to discharge the burden of proving intolerable conditions, and his conduct, including absence after filing the petition, weighed against him

Reasoning

The burden lay on the petitioner to prove the employer introduced intolerable conditions leaving no option but resignation. The website removal was not proven to cause ridicule, the email account was valid, the transfer allowance was paid, and the petitioner had reported to Kisumu on 8 May 2015. His conduct of taking all manner of leave and disappearing after 20 May 2015 was inconsistent with a forced resignation. The resignation letter itself was missing from the record.

p. 12
04

Whether the respondent's allegation of conflict of interest against the petitioner availed it

Holding

The court found the petitioner had indeed engaged in private business in conflict with his duties, but the respondent's reliance on it was in bad faith since no disciplinary action was taken and the issue was circumvented through transfer

Reasoning

The facts of the private limited liability company were not denied and relevant to the constructive dismissal claim, amounting to an affront to Chapter 6 of the Constitution. However, the respondent, aware of the misconduct, chose to transfer rather than discipline, which the court found was not good faith and 'burying the problem without addressing it', inadvertently aiding the petitioner's case of bad faith.

p. 14
05

Whether the respondent could recover the transfer allowance and notice pay

Holding

No; the leave was lawfully taken and such a claim required a cross-petition, not submissions

Reasoning

Section 46(b) of the Employment Act prohibits disciplinary action for going on lawful leave; repaying the allowance would be double punishment. Further, procedural fairness required a cross-petition so the petitioner could reply; claims raised only in submissions are unacceptable.

p. 15

Legal principles established

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  • Transfer of an employee is an employer's prerogative, but must be exercised with sufficient and reasonable notice, facilitation and not arbitrarily
  • Changes to written terms of employment, including work location, require consultation with the employee and written notification under section 10 of the Employment Act
  • The employee claiming constructive dismissal bears the burden of proving the employer introduced intolerable conditions
  • Claims for refund or notice pay must be raised by cross-petition, not in submissions

Court orders

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  1. 1.The Petitioner is awarded compensation of 3 months' salary for procedural unfairness at Kshs.852,812.00
  2. 2.The Petitioner shall be paid 50% of his costs
  3. 3.The payments due above shall be subject to tax deductions

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 41, 47, 50, 73(2)(c)(i) and (ii), 75(1)(a)(b) and (c), 77, 236; Chapter 6
  • Employment ActSections 9, 10(1) and (5), 43, 46(b)
  • Non-Governmental Co-ordination ActSection 7
  • Leadership and Integrity ActSections 16 and 26

Cases cited (9)

  • Severine Luyali v Ministry of Foreign Affairs & International Trade & 3 Others
    [2014] eKLR
  • A. M. Msagha v Chief Justice of Kenya & 7 Others
    [2006] eKLR
  • Emmanuel Mutisya Solomon v Agility Logistics
    Cause No.1148 of 2011
  • Simon Ngugi Kamau v Silpack Industries Limited
    [2015] eKLR
  • Pretoria Society for the Care of the Retarded v Loots
  • Githunguri v Republic
    [1986] eKLR
  • Nathan Ogada Atiagaga v Davis Engineering Ltd
    Cause No.419 of 2014
  • Mariana Onica and Another v Sky Aero Limited
    Cause No.1815 of 2014
  • Elizabeth Washeke & 62 Others v Airtel Networks (K) Limited & Another
    Cause 1972 of 2012
Jurisdiction invoked
Articles 41, 47 and 50 of the Constitution of Kenya (Bill of Rights enforcement in employment and labour relations)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Henry Ochido v NGO Co-ordination Board [2015] KEELRC 150 (KLR)", Case Analysis (2015). Petition No. 41 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/150/eng@2015-11-12

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