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ELRCDismissedJudicial Review Miscellaneous Application No. JR 49 of 2018· [2018] KEELRC 778 (KLR)

Republic v Kenya Marine & Fisheries Institute Ex-parte Ben B. Oisera [2018] KEELRC 778 (KLR)

Employment and Labour Relations Court
31 October 2018
2,177 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Ex Parte Applicant, a Senior Internal Auditor employed by the Kenya Marine & Fisheries Research Institute (KMFRI), challenged by judicial review a letter dated 18th May 2018 transferring him from the Mombasa Headquarters to the Turkana Station. Filed originally in the High Court as Miscellaneous Application No. JR 49 of 2018, the matter was referred by Njoki Mwangi J to the Employment and Labour Relations Court for want of jurisdiction. The Applicant contended that the transfer breached mandatory prerequisites, that his position had no establishment in Turkana, that the Board of Management was unconstituted, and that the transfer infringed his constitutional rights under Articles 27, 28, 29, 40, 47, 48 and 50, amounting to victimisation and abuse of office. He sought certiorari to quash the transfer decision and mandamus compelling his unconditional re-engagement with full remuneration and benefits. The Respondent, through grounds of opposition and a replying affidavit of its Human Resource Manager Kennedy Ommala, maintained that transfer is a management prerogative, that the Applicant was not permanently attached to Mombasa, that 133 staff had been transferred recently, and that the decision was backed by the Principal Secretary. The Court held that judicial review concerns the decision-making process, not the merits; that transfer of an employee is the employer's prerogative, subject only to the transfer being un-procedural or serving a collateral purpose; and that the Applicant had established no violation of any constitutional provision or governing instrument. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Court, in a judicial review application, may interfere with an employer's decision to transfer an employee

Holding

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.

Reasoning

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.

p. 5
02

Whether the Applicant proved violations of his constitutional rights (Articles 27, 28, 29, 40, 47, 48 and 50)

Holding

No violation established.

Reasoning

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.

p. 5
03

Whether the Respondent followed due procedure in effecting the transfer

Holding

The Applicant failed to demonstrate that due process was not followed; the decision was also backed by the Principal Secretary.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Applicant's application for prerogative orders of certiorari and mandamus is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 29, 40, 47, 48, 50
  • Mwongozo: The Code of Governance for State Corporations, January 2015Clause 1.19(a), Clause 1.19(f)
  • Public Service Commission Human Resource Policies and Procedures Manual for the Public Service, February 2017Clause B.30
  • Public Service Commission Discipline Manual for the Public Service, May 2016
  • Kenya Marine and Fisheries Research Institute Terms and Conditions of Service for Management Staff, June 2012

Cases cited (3)

  • Maurice Adongo Anyango v Kenyatta International Convention Centre
    [2018] eKLR
  • Republic v Commissioner of Custom Services Ex Parte Africa K-Link International
    [2012] eKLR
  • Henry Ochido v NGO Co-ordination Board
    [2015] eKLR
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

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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 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.