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ELRCAllowedNot stated in the judgment text· [2015] KEELRC 1124 (KLR)

Mworia v Water Resources Management Authority & 2 others (Constitutional Petition 4 of 2015) [2015] KEELRC 1124 (KLR)

Employment and Labour Relations Court (Industrial Court)
15 May 2015
BOByram Ongaya
4,430 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court stopped a public servant's transfer because his employer had no proper grievance procedure, and made the employer pay the legal costs.

What this practically means

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Executive summary

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The petitioner, a career public officer with six years to retirement, challenged his transfer by the 1st respondent (a statutory water-sector body) from the Ewaso Nyiro North Catchment Area, Nanyuki to Lake Victoria North Catchment Area, Kakamega, communicated by letters dated 12.03.2015 and 9.04.2015. He petitioned under Articles 29(d), 41(1), 41(2)(b), 47(1) and 47(2) of the Constitution and sought interim conservatory orders deferring the transfer. His grounds included apprehension of victimization because he had recorded statements with the EACC in an investigation involving alleged corruption against the 2nd respondent, a pending undetermined appeal against an earlier disciplinary warning, alleged threats to his life, and the proximity of the 2nd respondent's ancestral home to Kakamega. The respondents raised a preliminary objection on jurisdiction and on the absence of a memorandum of claim, and opposed the application on the merits, asserting the employer's right to transfer and denying the allegations. The court first held that it had exclusive jurisdiction under Article 162(2)(a), the High Court being barred by Article 165(5), following Mugendi v Kenyatta University, Asanyo and JSC v Shollei. It declined to transfer the suit to Nairobi, holding that it would be conveniently heard at Nyeri. On the merits of the interim relief, the court reiterated that it interferes only sparingly with employer human resource functions, but found that the employer had no genuine grievance-management or transfer policy, had rendered internal resolution of grievances impossible, and that the absence of such mechanisms amounted to an unfair labour practice contrary to Article 41. Article 236's protection against victimization reinforced allowing the application. The court deferred the transfer and stayed all steps flowing from the two letters, with the petitioner continuing at Nanyuki with full benefits, and ordered the respondents to pay the costs of the application.

Key legal issues

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Jurisdiction of the ELRC over petitions alleging violation of fundamental rights arising from employment

Holding

The court has exclusive jurisdiction because the alleged contraventions arise from the employment relationship and constitute a dispute relating to employment and labour relations under Article 162(2)(a), ousting the High Court under Article 165(5)

Reasoning

The direct dispute is a transfer, a human resource function between employer and employee. The alleged rights violations arose from the employment relationship and the petitioner's service. The Court of Appeal in Mugendi v Kenyatta University resolved that the Industrial Court can entertain composite claims of rights violations and breach of employment contract, as did JSC v Shollei and the court's own ruling in Asanyo.

p. 4
02

Whether the petition should be transferred to Nairobi

Holding

No; the court has countrywide jurisdiction and Nyeri is convenient since the dispute crystallized at Nanyuki and there is no compelling reason to transfer

Reasoning

Section 3 of the Employment and Labour Relations Court Act requires just, expeditious and proportionate determination. The petitioner was deployed at Nanyuki when the dispute crystallized; considering workload distribution and convenience, the suit should be heard at Nyeri.

p. 5
03

Entitlement to interim conservatory orders deferring the transfer

Holding

Entitled; the employer has no genuine grievance-management mechanism, has rendered internal resolution impossible, and the transfer may amount to victimization contrary to Article 236 pending EACC investigations

Reasoning

The court will not lightly interfere with employer transfers, but interference is justified where internal mechanisms are unavailable or made impossible. The respondents treated the pending appeal as a gone case and no transfer policy or grievance procedure was shown. The petitioner's cooperation with EACC investigations and fear of victimization under Article 236 supported deferring the transfer pending full hearing.

p. 7

Legal principles established

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  • The Employment and Labour Relations Court enjoys jurisdiction to hear and determine employment and labour relations matters alongside claims of fundamental rights ancillary to those matters
  • The court will very sparingly interfere in the employer's human resource functions; interference is justified where the employer breaches the Constitution, legislation or agreement, acts manifestly unfairly, or makes it impossible to resolve grievances internally
  • Absence of a genuine grievance-management or complaints mechanism in a well-established public employer amounts to unfair labour practice contrary to Article 41 of the Constitution

Court orders

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  1. 1.The transfer of the petitioner from Ewaso Nyiro North Catchment Area, Nanyuki to Lake Victoria North Catchment Area, Kakamega communicated by letters dated 12.03.2015 and 9.04.2015 is deferred until the hearing and determination of the petition
  2. 2.Any and all steps and proceedings by the respondents flowing from the letters dated 12.03.2015 and 9.04.2015 are stayed; the petitioner continues in the 1st respondent's employment at Nanyuki in the same office and capacity, with full benefits without break in service, until hearing and determination of the petition
  3. 3.The respondents to pay costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 6, 20(1), 22(1), 23(1), 29(d), 41(1), 41(2)(b), 47(1), 47(2), 162(2)(a), 162(3), 165(3)(b), 165(5), 232, 236, 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 4(1), 19
  • Industrial Court (Procedure) Rules, 2010Not specified (memorandum of claim requirement)
  • Employment and Labour Relations Court ActSections 3, 29(1) (as referenced via Industrial Court Act, 2011)
  • Industrial Court Act, 2011Sections 3, 29(1)

Cases cited (8)

  • Prof. Daniel N. Mugendi v Kenyatta University and 3 Others
    Civil Appeal No. 6 of 2012
  • United States International University (USIU) v The Attorney General & Others
    Petition No. 170 of 2012
  • Geoffrey Makana Asanyo v Nakuru Water and Sanitation Services Company and 6 Others
    [2014]eKLR
  • Judicial Service Commission v Gladys Boss Shollei & Another
    [2014]eKLR
  • Kenya Plantation Agricultural Workers Union v Kakuzi Limited
    [2014]eKLR
  • Mary Nyanagasi Ratemo & 9 Others v Kenya Police Staff Sacco Limited & Another
    [2013]eKLR
  • Aviation and Allied Workers Union v Kenya Airways Limited
    [2012]eKLR
  • Kenya Plantation and Agricultural Workers Union v James Finlay (K) Limited
    [2013]eKLR
Jurisdiction invoked
Articles 162(2)(a) and 165(5) of the Constitution of Kenya, 2010; Employment and Labour Relations Court Act, section 3

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Mworia v Water Resources Management Authority & 2 others (Constitutional Petition 4 of 2015) [2015] KEELRC 1124 (KLR)", Case Analysis (2015). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1124/eng@2015-05-15

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