Republic v Kenya Marine & Fisheries Institute Ex-parte Ben B. Oisera [2018] KEELRC 778 (KLR)
The bottom line
#Kenya's Employment Court confirmed employers can transfer employees anywhere, unless the transfer follows no procedure or targets someone for ulterior motives.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court, in a judicial review application, may interfere with an employer's decision to transfer an employee
Transfer is a management prerogative; the Court will only interfere where the transfer is un-procedural or serves a collateral purpose. No such showing was made.
The Court applied the settled principle that regular transfer of employees is the employer's prerogative, citing Mbaru J in Henry Ochido v NGO Co-ordination Board. In a judicial review application the Court examines the legality and procedure of the decision, not its merits, and cannot substitute its own decision for that of the Respondent. The Applicant cited several instruments and constitutional provisions but the Court found nothing indicating the transfer breached them, nor evidence that his position did not exist in Turkana.
Whether the Applicant proved violations of his constitutional rights (Articles 27, 28, 29, 40, 47, 48 and 50)
No violation established.
The Court examined the constitutional provisions and legal instruments cited by the Applicant, including Mwongozo, the PSC Human Resource Policies and Procedures Manual, the PSC Discipline Manual and the KMFRI Terms and Conditions of Service, and found nothing suggesting the transfer violated any of them. It also found no evidence that the Applicant's position did not exist within the Respondent's establishment in Turkana.
Whether the Respondent followed due procedure in effecting the transfer
The Applicant failed to demonstrate that due process was not followed; the decision was also backed by the Principal Secretary.
The Applicant contended that mandatory prerequisites for transfer, including confirmation by the Board of Management, were unfulfilled. The Respondent deponed that the Applicant appealed and the decision was upheld, that 133 staff had been transferred recently, and that the transfer was motivated by the need to cut Daily Subsistence Allowance costs. The Court found the Applicant had not established a case for setting aside the transfer.
Legal principles established
#- Transfer of an employee is a prerogative of the employer, subject to sufficient notice and requisite facilitation
- The exception to the employer's transfer prerogative is where the transfer is effected un-procedurally or to serve a collateral purpose
- Judicial review is concerned with the decision-making process, not the merits of the decision
Court orders
#- 1.The Applicant's application for prerogative orders of certiorari and mandamus is dismissed
- 2.Each party to bear their own costs
- On appeal from
- High Court of Kenya
- Miscellaneous Application No JR 49 of 2018
- Jurisdiction invoked
- Matter referred from the High Court (Njoki Mwangi J) on the basis that the High Court lacked jurisdiction; heard by the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kenya Marine & Fisheries Institute Ex-parte Ben B. Oisera [2018] KEELRC 778 (KLR)", Case Analysis (2018). Judicial Review Miscellaneous Application No. JR 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/778/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.