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ELRCDismissedNot stated in the judgment· [2016] KEELRC 987 (KLR)

Republic v Kenya Wildlife Service & another [2016] KEELRC 987 (KLR)

Employment and Labour Relations Court
30 June 2016
1,982 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to block an employee's transfer because his contract allowed posting anywhere in Kenya and no serious violation was proven.

What this practically means

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Executive summary

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The ex-parte Applicant, Simon Mweri Wanyoike, moved the Court by Notice of Motion dated 12th May 2016 under Articles 23(3)(f), 41 and 159(1) of the Constitution, Sections 8 and 9 of the Law Reform Act and Order 53 Rule 1(2) of the Civil Procedure Rules, seeking mandamus restraining the Kenya Wildlife Service from unprocedurally transferring him from Nairobi Headquarters to Kitale Station, prohibition against adopting or confirming the transfer, and certiorari quashing the transfer decision. He argued the transfer breached the Respondent's Human Capital Policy and Procedures Manual 2014 (which provides for November transfers and bars transfers used as disciplinary measures), was effected by a clerical officer rather than the proper human resource officers, violated Articles 41, 47 and 35, and was actuated by malice following investigations against him. The Respondent, through a replying affidavit of Lynnette Muganda and submissions, countered that the relationship was purely contractual with no statutory underpinning, relying on Halsbury's Laws of England, the Jaguongo Dominique Ochieng and Maseno University cases, that the Applicant had accepted deployment to any station in his appointment letter, had reported to the new station, taken leave and received a transfer allowance. The Court declined to determine the public/private law question, holding it belonged to the main claim, and confined itself to whether a prima facie case with probability of success existed. Finding that service at any station was a contractual term the Applicant had signed, that the transfer policy provisions were not mandatory, and that no gross violation warranted interference, the Court declined the judicial review reliefs and ordered the Applicant to proceed with his transfer and duties immediately pending hearing of the main claim.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

He did not; the transfer was consistent with his contract of employment and no gross violation was shown

Reasoning

The Court examined the Applicant's employment letter, which required him to accept work in any KWS branch or station in Kenya, a term he signed on 21/12/2001. The Human Capital Policy transfer provisions were directory, not mandatory, and could be varied in exceptional circumstances. The Applicant reported to the new station, took leave and accepted a transfer allowance without contest. The Court therefore found no basis for interim judicial review relief.

p. 4
02

Whether the transfer breached the Respondent's Human Capital Policy and Procedures Manual 2014

Holding

No breach; the November transfer timing provision was not mandatory

Reasoning

The Manual provided that transfers would ordinarily be effected in November, but clause (15) allowed the Director General or Deputy Director Human Capital to approve immediate transfers in exceptional cases of need. The Court read these provisions as being for the good order of the organization rather than mandatory terms capable of grounding a judicial review challenge.

p. 4
03

Whether the Court should adjudicate the public law versus private law amenability argument raised by the Respondent

Holding

The Court declined to decide it at the interlocutory stage, leaving it for the main claim

Reasoning

The Respondent argued that the employment relationship was contractual and of a private nature, relying on Halsbury's Laws of England and case authority, and thus not amenable to judicial review. The Court held that the details of judicial review orders and the public/private distinction were matters to be determined in the main claim, confining itself at this stage to the prima facie case question.

p. 4

Legal principles established

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  • Courts should not interfere with internal arrangements between an employee and employer except where there are gross violations
  • Internal transfer policy guidelines not couched in mandatory terms may be departed from in exceptional circumstances

Court orders

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  1. 1.The Applicant to proceed with his transfer and duties immediately pending hearing and determination of the main claim
  2. 2.Costs of the application were not expressly addressed in the final orders

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 23(3)(f)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 159(1)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 35
  • Law Reform ActSections 8 & 9
  • Civil Procedure RulesOrder 53 Rule 1(2)

Cases cited (3)

  • Jaguongo Dominique Ochieng vs Teachers Service Commission
    (2015) eKLR
  • Staff Disciplinary Committee of Maseno University & 2 Others vs. Ochonga Okello
    [2012] eKLR
  • Erick D.J Makokha & Others vs. Lawrence Sagini & Others
Jurisdiction invoked
Articles 23(3)(f), 41 & 159(1) of the Constitution; Sections 8 & 9 of the Law Reform Act; Order 53 Rule 1(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Kenya Wildlife Service & another [2016] KEELRC 987 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/987/eng@2016-06-30

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