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ELRCDismissedJudicial Review No. 26 of 2017· [2018] KEELRC 2201 (KLR)

Apamo A. Boniface v Principal Secretary, Ministry of Health & 2 others [2018] KEELRC 2201 (KLR)

Employment and Labour Relations Court of Kenya
9 March 2018
HWHellen S. Wasilwa
3,738 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 that Principal Secretaries can post and deploy doctors without hearings, unless evidence shows the decision was unlawful, irrational, or procedurally unfair.

What this practically means

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Executive summary

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The Applicant, an advocate, moved the Employment and Labour Relations Court by Notice of Motion under Articles 10, 19, 20, 28, 43, 73, 232 and 234 of the Constitution, Order 53 rule 3(1) of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, seeking certiorari to quash a posting order Ref: MOH/ADM/HRMD/03(126) dated 26th September 2017 issued by the Principal Secretary, Ministry of Health, deploying 26 doctors; prohibition against the Principal Secretary usurping the powers of the Cabinet Secretary and MHRMAC; and mandamus compelling reinstatement of the affected doctors. He alleged the deployment bypassed mandatory MHRMAC recommendation, reversed supervisory hierarchies, slashed salaries, and favoured officers sharing the Principal Secretary's ethnicity. The Respondents, through a replying affidavit of then Principal Secretary Julius Korir and Grounds of Opposition, maintained the deployment was a lawful exercise of the Principal Secretary's human resource functions under Article 155 and the Human Resource Policies and Procedures Manual, denied demotions, and challenged the Applicant's locus standi. Applying Section 4 of the Fair Administrative Actions Act and Article 2.1.5 of the delegation Rules, the court held that deployment of doctors is part of the Principal Secretary's functions, that judicial review does not lie in the merits though irrationality does, that no data proved demotion, that the affected doctors never complained, and that insisting on hearings before every deployment would fetter discretion. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Principal Secretary had jurisdiction to deploy doctors

Holding

The Principal Secretary acted within his jurisdiction as deployment is part of his human resource functions

Reasoning

Article 155 of the Constitution establishes the office of the Principal Secretary, and Article 2.1.5 of the Public Service (Delegation of PSC Human Resource Functions) Rules places administration of human resource functions, including chairing MHRMAC and day-to-day operations, on the Principal Secretary. The court thus concluded deployment of doctors falls within his mandate, and the contention that he acted without jurisdiction was unfounded.

p. 5
02

Whether the deployment decision was irrational

Holding

No irrationality was established; the Applicant produced no data proving demotions

Reasoning

Although irrationality falls within the scope of judicial review, the applicant bore the burden of proving the alleged absurdities, such as junior doctors supervising seniors and salary reductions. No data was availed and the affected doctors never complained, so the allegations remained mere allegations incapable of supporting quashing orders.

p. 5
03

Procedural fairness and hearing of affected doctors

Holding

Due process was followed; insisting on hearings for every deployment would fetter the Principal Secretary's discretion

Reasoning

The court held the action was not done without due process, and that performance management rests with the Principal Secretary, who must ensure proper officers are in proper offices. Requiring him to hear every doctor before deployment would improperly constrain his discretion, and the affected officers had not complained.

p. 5

Legal principles established

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  • A Principal Secretary's duties include human resource functions such as deployment and posting of officers within the State Department, exercised under Article 155 of the Constitution and the Public Service (Delegation of Public Service Commission Human Resource Functions) Rules
  • Judicial review does not lie in the merits of a decision, though irrationality is within its scope
  • Requiring a Principal Secretary to hear every officer before deployment would fetter his discretion in performance management

Court orders

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  1. 1.The application is dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 19, 20, 22, 28, 41, 43, 47, 73, 155(1), 155(2), 232, 234
  • Civil Procedure RulesOrder 53 rule 3(1)
  • Law Reform Act, Cap 26Sections 8 and 9
  • Fair Administrative Actions ActSection 4
  • Public Service (Delegation of Public Service Commission Human Resource Functions to the Cabinet Secretary (Revised August 2015)) RulesArticle 2.1.5
  • Human Resource Policies and Procedures Manual for the Public Service May 2016Paragraphs A7(1)(ii), A7(1)(VII)
  • Salaries and Remuneration Circular Ref. SRC/TS/OGOVT/3/61 Vol III/(136) of 14.9.2015
  • 2017 Registered CBA between KMPDU and the Ministry of HealthArticle III(d)(2)

Cases cited (8)

  • Associated Provincial Picture Limited Vs Wednesbury Corporation
    (1947) 2 ALL ER 680; (1948) 1 KB 223
  • Republic vs Deputy Inspector General of National Police & 32 Others
    (2013) eKLR
  • Re Bivac International SA (Bureau Veritas)
    (2005) 2 EA 43
  • Seventh Day Adventist Church (East Africa) Limited Vs Permanent Secretary, Ministry of Nairobi Metropolitan Development & Another
    (2014) eKLR
  • Republic vs Public Procurement Administrative Review Board & 2 Others Team Engineering Spa ex parte
    (2014) eKLR
  • Republic Vs Attorney General and Another ex parte Waswa & 2 Others
    (2005) KLR 280
  • Ridge vs Baldwin
    (1963) 2 ALL ER 66 (printed as 1063)
  • Pastoli Vs Kabale District Local Government Council and Others
    (2008) EA 300
Jurisdiction invoked
Articles 10, 19, 20, 28, 43, 73, 232 and 234 of the Constitution of Kenya 2010; Order 53 rule 3(1) of the Civil Procedure Rules; Sections 8 and 9 of the Law Reform Act, Cap 26; Section 4 of the Fair Administrative Actions Act

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, "Apamo A. Boniface v Principal Secretary, Ministry of Health & 2 others [2018] KEELRC 2201 (KLR)", Case Analysis (2018). Judicial Review No. 26 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2201/eng@2018-03-09

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