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ELRCPartially AllowedPetition No. 105 of 2015 (filed 28.04.2015)· [2016] KEELRC 860 (KLR)

Geoffrey Mwori v Water Resources Management Authority & 2 others [2016] KEELRC 860 (KLR)

Employment and Labour Relations Court
29 July 2016
BOByram Ongaya
3,523 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employer cannot transfer staff outside agreed procedures, voiding the transfer and requiring published, fair transfer rules.

What this practically means

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Executive summary

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The petitioner, a hydrologist employed by the 1st respondent, a statutory body, petitioned under Articles 29(d), 41(1), 41(2)(b), 47(1) and 47(2) of the Constitution, alleging that his transfer from Nanyuki to Kakamega by letters dated 12.03.2015 and 09.04.2015, together with alleged intimidation by the 2nd respondent, unfair disciplinary processes and the failure to determine his appeal, violated his constitutional rights. He sought declarations, an order compelling the EACC to investigate and prosecute corruption at the 1st respondent, general damages and costs. The respondents maintained the transfer was a legitimate deployment within the 1st respondent's operations. The court declined the Article 29(d) claim as premature because police and EACC investigations were ongoing and no criminal court had made findings of culpability, following Silas Make Otuke v Attorney General. It also held the petitioner failed to prove the transfer endangered his life, so no Article 47 violation arose. However, the court found the transfer was made without the involvement of the staff matters committee or the 3rd respondent, breaching established procedure, and that transfer criteria were undefined, contravening Articles 41(1) and 41(2)(b). The prayer for EACC investigations was refused as superfluous, the appeal-related claim was held to require mandamus rather than the relief sought, and damages were refused. The Kakamega transfer was set aside, the petitioner to serve at Nanyuki until the 1st respondent institutes and publishes defined transfer procedures by 31.12.2016, with the 1st respondent bearing the petitioner's costs.

Key legal issues

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01

Violation of Article 29(d) - freedom and security of the person

Holding

The claim failed; a declaration could not rest on unproven criminal culpability while police and EACC investigations were ongoing

Reasoning

The petitioner had reported intimidation to the police but the report had not been fully investigated, and the EACC investigations into alleged corruption were ongoing. Findings in those processes require proof beyond reasonable doubt in criminal proceedings. In the absence of findings by a criminal trial court, a constitutional declaration based on criminal culpability would be premature, following Silas Make Otuke v Attorney General.

p. 4
02

Violation of Article 47(1) and (2) - fair administrative action in the transfer

Holding

The transfer letters did not amount to unfair administrative action endangering the petitioner's life

Reasoning

The court found the petitioner did not prove that the transfer to Kakamega would pose a serious threat to his life. He also failed to establish that the 2nd and 3rd respondents' rural homes were near Kakamega, and even if so, that fact alone would not constitute a threat to his life.

p. 5
03

Violation of Articles 41(1) and 41(2)(b) - fair labour practices and reasonable working conditions

Holding

The transfers were an unfair labour practice and created unreasonable working conditions; the Kakamega transfer was set aside

Reasoning

The 3rd respondent confirmed transfers were handled by the staff matters committee, yet there were no minutes on the petitioner's transfer and he was unaware of the letter requiring immediate reporting to Kakamega. The decision-making procedure was not followed and the criteria for transfers were undefined or unagreed, breaching Articles 41(1) and 41(2)(b).

p. 5
04

Order compelling EACC investigations and prosecution

Holding

Declined as superfluous since investigations were already ongoing

Reasoning

All parties' evidence was that EACC investigations were ongoing. An order directing what was already happening would add no value or serve any further purpose, so the prayer was declined.

p. 5
05

Failure to decide the petitioner's appeal and complaints

Holding

Not entitled to relief as pleaded; no decision existed under Article 47(1), and the proper remedy would be mandamus or a mandatory injunction

Reasoning

The 1st respondent had an undisputed duty to decide the appeal and gave no explanation for not doing so. However, no decision was made, so there was nothing to impugn under Article 47(1). Even if refusal to decide were a negative decision amenable to Article 47(1), that case was not pleaded for the petitioner.

p. 6
06

General damages for constitutional violations

Holding

Refused; the declaration sufficed

Reasoning

The petitioner continued in employment with full benefits including monthly pay throughout the petition, and his submissions did not provide a coherent assessment of damages. The declaration granted would sufficiently serve the ends of justice.

p. 6

Legal principles established

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  • It is an unfair labour practice for an employer to impose on an employee a decision made in breach of the agreed, lawful or reasonable conventional procedure and without the involvement of the relevant person or authority on the employer's side
  • Where criminal investigations are pending, a petition premised on criminal culpability of respondents is premature until the criminal process is exhausted and findings of guilt or otherwise are made

Court orders

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  1. 1.Declaration that the transfers imposed by the 1st respondent contravened the petitioner's right to fair labour practices under Article 41(1) for breach of the agreed or lawful or conventional procedure on making transfer decisions involving the staff matters committee
  2. 2.Declaration that the transfers contravened the petitioner's right to reasonable working conditions under Article 41(2)(b) for want of defined procedure and criteria for making transfer decisions
  3. 3.The transfer of the petitioner to Kakamega is set aside and the petitioner shall continue serving at Nanyuki until the 1st respondent, not later than 31.12.2016, lawfully institutes and publishes a defined procedure and criteria for making transfer decisions for all its employees
  4. 4.The 1st respondent to pay the petitioner's costs of the petition and all respondents to bear their own respective costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 29(d)
  • Constitution of Kenya, 2010Articles 41(1), 41(2)(b)
  • Constitution of Kenya, 2010Article 47(1) and (2)
  • Constitution of Kenya, 2010Article 20(1)
  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 23(1)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 162(3)
  • Constitution of Kenya, 2010Article 165(3)(b)

Cases cited (1)

  • Silas Make Otuke- Vesus- Attorney General and 3 Others
    [2014] eKLR
Jurisdiction invoked
Articles 20(1), 22(1), 23(1), 162(2)(a), 162(3) and 165(3)(b) of the Constitution of Kenya, 2010

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, "Geoffrey Mwori v Water Resources Management Authority & 2 others [2016] KEELRC 860 (KLR)", Case Analysis (2016). Petition No. 105 of 2015 (filed 28.04.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/860/eng@2016-07-29

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