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ELRCAllowedPetition No 11 of 2017· [2019] KEELRC 2161 (KLR)

Margaret Wanja Muthui v Ministry of Transport, Infrastructure, Housing and Urban Development & 2 others [2019] KEELRC 2161 (KLR)

Employment and Labour Relations Court
14 February 2019
HWHellen Wasilwa
4,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a Cabinet Secretary couldn't redeploy a KeRRA employee, quashing the transfer for violating her employment rights.

What this practically means

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Executive summary

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The Petitioner, employed by the Kenya Rural Roads Authority (the 2nd Respondent) since 2009 and rising to Procurement Manager in 2015, challenged her deployment by letters dated 8th and 13th February 2017 to the Office of Performance Management and Coordination under the Presidency, pursuant to a directive from the 1st Respondent, the Cabinet Secretary. She contended the deployment followed her procurement opinion which blocked an overpriced road tender, was ultra vires, breached Articles 41 and 47, and was a witch hunt. The Respondents maintained the deployment was a lawful human resource function within the Cabinet Secretary's powers under Article 153 and urged the Court not to interfere with employer prerogatives, citing Pastoli on illegality, irrationality and procedural impropriety, and Geoffrey Moria on judicial restraint in human resource matters. The Court held that the 2nd Respondent is a body corporate under Section 6(1) of the Kenya Roads Act 2007, that the Petitioner's appointment and promotions were made by the Authority with no reference to the Ministry, and that the employer was therefore the 2nd Respondent alone. The 1st Respondent acted without jurisdiction and in abuse of authority. Applying Section 10(5) of the Employment Act and Sections 4 and 7 of the Fair Administrative Action Act, the Court found the transfer illegal, unreasonable and unauthorized, breaching Articles 41, 47 and 50. The Petition was allowed: a declaration of breach, certiorari quashing the deployment letters, prohibition against future unlawful deployment, and costs against the Respondents.

Key legal issues

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01

Whether the 1st Respondent had jurisdiction to direct the Petitioner's deployment

Holding

The 1st Respondent acted without jurisdiction and in abuse of authority because the Petitioner's employer was the 2nd Respondent, a body corporate established under the Kenya Roads Act 2007, and all appointments and promotions were made by the Authority

Reasoning

The Court found the 2nd Respondent is a body corporate with perpetual succession under Section 6(1) of the Kenya Roads Act 2007, capable of suing and being sued in its own name. The Petitioner's letter of appointment and all promotions were issued by the Authority with no reference to the Ministry. A direction by the 1st Respondent that the 2nd Respondent deploy the Petitioner was therefore unauthorized and unlawful under Section 7 of the Fair Administrative Action Act.

p. 6
02

Whether the deployment violated fair administrative action and fair labour practices

Holding

The transfer was made illegally, unreasonably and without authority, breaching Articles 41, 47 and 50 of the Constitution and Sections 4 and 7 of the Fair Administrative Action Act

Reasoning

Relying on Section 10(5) of the Employment Act, the Court held that a term of an employment contract can only change in consultation with the employee, and does not extend to deployment to duties not commensurate with the employee's qualifications. No valid reasons or procedure preceded the deployment. The Court cited authority that unilateral assignment of new duties amounts to a fundamental breach going to the root of the contract.

p. 6
03

Whether judicial review remedies should issue against human resource decisions of state organs

Holding

Judicial review remedies were merited because the decision was tainted with illegality, irrationality and abuse of authority, notwithstanding the general reluctance to interfere in employer human resource functions

Reasoning

The Respondents relied on authority that courts interfere sparingly with human resource functions and only where there is contravention of the Constitution or legislation, breach of contract, or failure to exhaust internal processes. The Court found the Petitioner demonstrated precisely such a contravention: the 1st Respondent acted outside its powers, satisfying the Pastoli thresholds of illegality and procedural impropriety, entitling her to certiorari and prohibition.

p. 6

Legal principles established

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  • A term of an employment contract can only change in consultation with the employee, and a unilateral redeployment to duties not commensurate with an employee's qualifications is unlawful
  • An employer of an employee of a state corporation cannot direct that employee's deployment where the employment relationship is solely with the corporation

Court orders

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  1. 1.A declaration that the act of the 1st Respondent directing the 2nd Respondent to deploy the Petitioner to the office of Performance Management and Co-ordination under the presidency is a breach of the latter's constitutional rights under Articles 47, 41 and 50 of the Constitution
  2. 2.An order of Judicial Review of certiorari to quash the decision of the Respondents made by letters dated 8th February 2017 and 13th February 2017 deploying the Petitioner to an office to undertake duties on which she has no expertise
  3. 3.An order of Judicial Review of prohibition to prohibit the Respondents from deploying the Petitioner to any other office without following the right procedure
  4. 4.The 1st and 2nd Respondents to pay costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(1),(2),(3), 28, 41(1), 47, 48, 50, 153
  • Public Procurement and Asset Disposal Act, 2015Sections 7 and 84
  • Employment ActSections 4 (as cited by court at para 41 heading), 10(1) and 10(5), 49
  • Fair Administrative Action ActSections 4 and 7
  • Kenya Roads Act 2007Section 6(1)

Cases cited (7)

  • Pastoli vs. Kabale District Local Government Council and Others
    (2008) 2EA 300
  • Council of Civil Unions Vs Minister for the Civil Service
    (1985) AC 2
  • An Application by Bukoba Gymkhana Club
    (1963) EA 478
  • East African Railways Corp Vs Anthony Sefu
    Dar-Es-Salaam HCCA No. 10 of 1971 (1973) EA 327
  • Geoffrey Moria Vs Water Resources Management Authority and 2 Others
    (2015) eKLR
  • Mwenda Guantai Vs The Chief Magistrate Nairobi
    (2007) 2EA 170
  • CA 55/2015 (Court of Appeal Kisumu)
Jurisdiction invoked
Original constitutional and judicial review jurisdiction under the Constitution of Kenya, 2010, and the Fair Administrative Action 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, "Margaret Wanja Muthui v Ministry of Transport, Infrastructure, Housing and Urban Development & 2 others [2019] KEELRC 2161 (KLR)", Case Analysis (2019). Petition No 11 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2161/eng@2019-02-14

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