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ELRCDismissedMisc. Application No 10 of 2016· [2019] KEELRC 1228 (KLR)

Peter Kuria Nguru v Judicial Service Commission & 3 others; Cabinet Secretary Ministry of Health (Interested Party) [2019] KEELRC 1228 (KLR)

Employment and Labour Relations Court
10 July 2019
NMNzioki wa Makau
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers can transfer employees under a lawful policy, and discrimination claims fail without actual evidence.

What this practically means

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Executive summary

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This was a judicial review motion in which the Applicant, a member of Judiciary staff, challenged his attempted transfer from Othaya Law Courts to Hamisi Law Courts. He argued the transfer was discriminatory and violated Section 8(1) of the Occupational Safety and Health Act, which protects employees who raise health and safety complaints, as well as the preamble to the Judiciary Human Resource Policies and Procedures Manual, 2014, given his known medical condition sustained in a road accident. The 1st–3rd Respondents submitted that the Applicant's appointment letter permitted posting anywhere in Kenya, that the transfer followed a capacity and staff rationalisation audit which found 33% of employees had served between 5 and 30 years in one station, and that the Chief Justice had directed transfer of staff serving at least five years. They questioned the genuineness of some of the Applicant's medical documentation, noting the Spine Clinic in Ahmedabad denied treating him and Outspan Hospital declined to respond. They relied on Section 10(1) of the Judicial Service Act and Regulation 14 of Part IV of its Third Schedule, and emphasised that judicial review concerns process, not merits. The Court found the transfer decision was made within the Respondents' mandate under Article 172 of the Constitution, that the Applicant met the transfer criteria having served five years at the station, and that no evidence of discrimination was led. The motion was dismissed with liberty to effect the transfer bearing in mind the employee's peculiar circumstances, and no order as to costs was made given the continuing employment relationship.

Key legal issues

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01

Lawfulness of the transfer decision

Holding

The decision was lawful, made under Article 172 and Regulation 14 of Part IV of the Third Schedule to the Judicial Service Act

Reasoning

After a staff rationalisation audit the Respondents were required to transfer staff who had served at least 5 years in a station. The Applicant had served 5 years and met the criteria. The process followed the transfer policy and was not contra-statute, irrational or unfair. No error was demonstrated.

p. 2
02

Alleged discrimination based on medical condition

Holding

No evidence of discrimination was led; the challenge was misplaced

Reasoning

The Applicant asserted that his medical condition triggered Section 8(1) of the Occupational Safety and Health Act protection. However, no evidence of discrimination was adduced. The Respondents had accommodated the condition previously, and the transfer followed a legitimate rationalisation exercise. The claim failed.

p. 2

Legal principles established

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  • An employer is entitled to transfer an employee in accordance with its statutory mandate and transfer policy, and an employee is not immune from a properly planned and executed transfer absent evidence of discrimination
  • Judicial review concerns itself with the decision-making process, not the merits of the decision

Court orders

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  1. 1.The Applicant's judicial review motion is dismissed
  2. 2.Liberty granted to effect the transfer bearing in mind the peculiar circumstances of the employee
  3. 3.No order as to costs

Authorities

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Legislation

  • Occupational Safety and Health ActSection 8(1)
  • Judicial Service ActSection 10(1)
  • Judicial Service ActRegulation 14 of Part IV of the Third Schedule
  • Constitution of KenyaArticle 172
  • Judiciary Human Resource Policies and Procedures Manual, 2014Preamble

Cases cited (2)

  • Andrew Ogola Makomere v Agro Industrial Tools Limited
    [2017] eKLR
  • Kenya National Examinations Council v Geoffrey Gathegi & 9 Others
    [1997] eKLR
Jurisdiction invoked
Judicial review jurisdiction; the impugned decision was made under Article 172 of the Constitution and Regulation 14 of Part IV of the Third Schedule to the Judicial Service 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, "Peter Kuria Nguru v Judicial Service Commission & 3 others; Cabinet Secretary Ministry of Health (Interested Party) [2019] KEELRC 1228 (KLR)", Case Analysis (2019). Misc. Application No 10 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1228/eng@2019-07-10

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