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ELRCAllowedPetition (Notice of Motion dated 19.2.2020)· [2020] KEELRC 1348 (KLR)

Sarah Njuhi Mwenda v Head of Public Service & 4 others [2020] KEELRC 1348 (KLR)

Employment and Labour Relations Court
13 March 2020
OMOnesmus N. Makau
4,161 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked a public officer's transfer, ruling that employers cannot reassign competitively appointed officers without a vacancy, qualifications, and consent.

What this practically means

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Executive summary

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This is a ruling on the Petitioner's Notice of Motion dated 19 February 2020 seeking conservatory orders in a constitutional petition challenging her posting from the position of Chief Land Registrar in the Ministry of Lands and Physical Planning to the State Law & Department of Justice for redeployment. The Applicant, competitively appointed to the post by the Public Service Commission in August 2014, alleged the posting was made without due process, violated Articles 41, 47 and 50 of the Constitution, and amounted to victimization and unfair labour practice, pointing to her earlier suspension, criminal charges later withdrawn, delayed reinstatement, and frustration of her duties. The 2nd and 3rd Respondents countered that the employer has a prerogative to deploy officers under the HR Policies and Procedures Manual, that she had previously accepted deployments, and that the transfer was for improved service delivery and not targeted at her. The court framed one issue: whether the Applicant met the threshold for conservatory orders. It held that having been competitively appointed as substantive Chief Land Registrar, any posting away from that position amounted to removal or redesignation, protected by Article 236 of the Constitution and section 40 of the Public Service Act, which require a vacancy, qualifications, consent and no salary reduction. The respondents failed to demonstrate these conditions were met or that the redeployment power was lawfully delegated. Applying JSC v Speaker of the National Assembly and Munya, the court found a strong, well-founded case and that the public interest favoured obedience to the law without disrupting the Lands Registry. The application was allowed with conservatory orders restraining the redeployment and protecting the Applicant from victimization, priority hearing of the petition, and costs to abide the outcome.

Key legal issues

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01

Whether the posting of the Chief Land Registrar to the State Law Office was a lawful transfer or a disguised removal/redesignation

Holding

Because the Applicant was competitively appointed to the post of Chief Land Registrar and her appointment letter did not make her transferable, the posting amounts to removal from office or redesignation, requiring compliance with Article 236, section 40 of the Public Service Act and the HR Manual.

Reasoning

The court found the Applicant was competitively selected as substantive Chief Land Registrar and her appointment letter contained no transferability clause. The respondents failed to demonstrate a vacancy at the new station, her consent, her qualifications for the new assignment, or that her salary would be unaffected. The transfer letters also did not cite any lawful delegation of the power to redeploy her.

p. 4
02

Whether conservatory orders should issue pending the substantive petition

Holding

Yes. The Applicant established a strong, well-founded case grounded on Article 236, section 40 of the Public Service Act and the HR Manual, and the public interest favours obedience to the law without disrupting the Lands Registry.

Reasoning

Applying JSC v Speaker of the National Assembly and Munya, the court balanced preserving the substratum of the petition against disruption of public agencies. It found the laws invoked bind the respondents, that granting the orders would prevent the court acting in vain, and that no evidence showed continued service by the Applicant would disrupt the Registry.

p. 5

Legal principles established

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  • An employer's prerogative to transfer or deploy employees must be exercised reasonably and not arbitrarily.
  • A public officer competitively appointed to a specific office enjoys constitutional and statutory protection from removal or redesignation without due process and consent.

Court orders

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  1. 1.Conservatory order restraining the Respondents from redeploying and/or releasing the Petitioner from the Ministry of Lands and Physical Planning to the State Law & Department of Justice and/or interfering with her terms of service as Chief Land Registrar, pending hearing and determination of the petition
  2. 2.Conservatory order protecting the Petitioner/Applicant from victimization of any form pending hearing and determination of the substantive petition
  3. 3.The Petition to be heard and determined on a priority basis once the respondents file and serve their response
  4. 4.Costs of the motion to abide the outcome of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 41, 47, 50, 236
  • Constitution of Kenya (Protection of Right and Fundamental Freedoms) Practice and Procedure Rules 2013Rules 3, 4, 19, 23
  • Land Registration ActSections 12, 13
  • Public Service ActSection 40(3)
  • Employment ActSection 10(5)
  • Fair Administrative Action ActSection 4
  • Human Resource Policies and Procedures Manual for Public Service, 2016Sections B21, B31(2)

Cases cited (5)

  • Ken T. Sungu v KPA
    [2020] eKLR
  • Teachers Service Commission v Thomas Joseph O Onyango
    Civ. Appeal No. 122 of 2015
  • Henry Ochido v NGO Co-ordination Board
    [2015] eKLR
  • Judicial Service Commission v Speaker of the National Assembly & Another
    [2013] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others
    [2014] eKLR
Jurisdiction invoked
Articles 22 and 23 of the Constitution and rules 3, 4, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

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, "Sarah Njuhi Mwenda v Head of Public Service & 4 others [2020] KEELRC 1348 (KLR)", Case Analysis (2020). Petition (Notice of Motion dated 19.2.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1348/eng@2020-03-13

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