Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedConstitutional Petition No 124 of 2019· [2020] KEELRC 1603 (KLR)

Hezekiah Chepkwony & 2 others v Cabinet Secretary, Ministry of Health & 2 others [2020] KEELRC 1603 (KLR)

High Court of Kenya
31 January 2020
OMOnsemus N. Makau
5,635 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court voided the Health Ministry's transfer of NQCL pharmacists because it ignored the law, HR procedures and even a court order.

What this practically means

#

Executive summary

#
Three senior pharmacists serving at the National Quality Control Laboratory (NQCL) petitioned against their transfer/deployment by the Cabinet Secretary and Principal Secretary, Ministry of Health, in June 2019, alleging ultra vires action and violations of their constitutional rights, including fair labour practices, dignity, non-discrimination and fair administrative action. They sought declarations of invalidity, prohibitory and conservatory orders, and compensation. The respondents defended the transfers as a lawful exercise of the employer's managerial prerogative following MHRMAC recommendations, and challenged the petition for failing the Anarita Karimi Njeru precision threshold. The court framed three issues: ultra vires action, constitutional violation, and entitlement to reliefs. It held that transfer/deployment powers delegated by the PSC vested in the Cabinet Secretary and not the Principal Secretary, who could not deploy staff without MHRMAC recommendation and Cabinet Secretary approval. The replacement of the 1st Petitioner as NQCL Director breached section 35H of the Pharmacy and Poisons Act, which vests that appointment power in the NQCL Board. The 2nd Respondent also unilaterally altered the 1st Petitioner's approved posting to Mathari Hospital, and the 3rd Petitioner's name was irregularly added by hand to the transfer list without any recommendation. The 2nd Petitioner's transfer breached subsisting High Court orders. Only the 1st Petitioner proved violation of his right to fair administrative action under Article 47; the 2nd and 3rd Petitioners established only breach of contract. The petition was partially allowed: declarations of invalidity and contravention of Article 10 were issued, the Petitioners maintain their NQCL positions pending lawful deployment, and the 1st Petitioner was awarded Kshs. 500,000 as compensatory damages. No order as to costs was made.

Key legal issues

#
01

Ultra vires transfer/deployment of the Petitioners

Holding

The transfer/deployment of the 1st and 3rd Petitioners was ultra vires and invalid; the 2nd Petitioner's transfer was made in contempt of court orders and is invalid

Reasoning

The court found the PSC delegated transfer powers to the 1st Respondent (Cabinet Secretary), not the 2nd Respondent. The replacement of the 1st Petitioner as NQCL Director breached section 35H of the Pharmacy and Poisons Act vesting that power in the Board. The 2nd Respondent unilaterally altered the approved posting of the 1st Petitioner, and the 3rd Petitioner's name was conspicuously added by hand without MHRMAC recommendation or approval. The 2nd Petitioner's transfer breached subsisting High Court orders.

p. 6
02

Violation of constitutional rights

Holding

Only the 1st Petitioner proved violation of his right to fair administrative action under Article 47; the 2nd and 3rd Petitioners proved only breach of contract

Reasoning

The court held that unconstitutional actions do not automatically amount to violation of individual fundamental rights; proof is required per person. The 1st Petitioner's three-year contract as NQCL Director was terminated without consultation with him or the NQCL Board, breaching Article 47 and section 4 of the Fair Administrative Actions Act. The 2nd and 3rd Petitioners' grievances, save for contempt of court orders regarding the 2nd Petitioner, were purely contractual.

p. 6
03

Reliefs entitlement

Holding

Declarations of invalidity and Article 10 contravention granted; the Petitioners maintain their positions at NQCL; Kshs. 500,000 compensatory damages to the 1st Petitioner only

Reasoning

Having found the impugned decisions ultra vires statute, the HR Manual and court orders, the court granted declarations, preserved the Petitioners' positions at NQCL pending lawful deployment, and awarded compensatory damages only to the 1st Petitioner whose fair administrative action right was violated. No costs were ordered due to special circumstances.

p. 7

Legal principles established

#
  • Only the Public Service Commission or the authorized officer has the mandate to transfer/deploy civil servants, and delegation was to the Cabinet Secretary and not the Principal Secretary
  • The power to appoint the Director of NQCL vests solely in the NQCL Board of Management under section 35H of the Pharmacy and Poisons Act
  • In the public sector, prescribed procedures for transfer/deployment of public officers must be strictly complied with
  • A decision made in disobedience of a court order is invalid and of no consequence
  • An employer enjoys managerial prerogative to transfer and deploy staff provided terms of service are not altered to the employee's detriment and no unbearable hardship is caused

Court orders

#
  1. 1.A declaration that the Petitioners were and are entitled to the protection of their Fundamental Rights and Freedoms and that the Respondents were and remain under a duty to observe the National values enshrined in Article 10 of the Constitution
  2. 2.An order that the decision of the 1st and 2nd Respondents conveyed vide the 1st Respondent's Memo list and subsequent letters of deployment dated 24th June, 2019 touching on the 1st and 3rd Petitioners, Dr. Charles Kandie and Dr. Josephat Mbuva contravenes the Constitution and is null and void ab initio
  3. 3.A declaration that the posting of the 1st Petitioner was made in contravention of the principles of National Values under Article 10 of the Constitution
  4. 4.An order that the Petitioners maintain their current service and positions at the National Quality Control Laboratory without loss of benefits and status until any intended deployment is done in compliance with the Constitution, statute law and the Human Resource Policies and Procedures Manual for the Public Service
  5. 5.Compensatory damages of Kshs. 500,000 awarded to the 1st Petitioner for violation of his right to fair administrative action
  6. 6.No order as to costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 20, 27, 28, 41, 47, 73, 155(2), 232, 234(5), 236
  • Pharmacy and Poisons ActSection 35H
  • Public Service Commission ActSections 31, 43, 43(3)
  • Employment ActSection 46
  • Fair Administrative Actions ActSection 4
  • Human Resource Policies and Procedures Manual for the Public Service, May 2016Sections B.31, 4.9.2
  • Public Service Code of RegulationNot specified
  • Delegation of Public Service Commission Human Resource Powers and Functions Policy - Ref. No. PSC/SEC/93/37 NOL. IV/ (37: 30th July, 2018)Whole instrument

Cases cited (13)

  • Henry Ochido Vs NGO Co-ordination Board
    (2015) eKLR
  • Severine Luyali versus Minister Foreign Affairs and Trade and Others
    Petition No. 23 of 2014
  • James Sande Amuyeka & 6 Others Vs Super Foam Limited
    (2015) eKLR
  • East Africa Portland Cement Company Ltd. Vs Attorney General & Another
    (2013) eKLR
  • Mumo Matemu Vs Trusted Society of Human Rights
  • Anarita Karimi Njeru case
  • Raila Odinga Vs IEBC & 3 Others
    Supreme Court Election Petition No. 5 of 2013
  • Kiambu County Tenants Welfare Association Vs Attorney General & Another
    (2017) eKLR
  • Susan Mumbi Vs. Kefala Grebedhin
    Nairobi HCCC No. 332 of 1993
  • Anne Wairimu Kimani Vs Kenya Agricultural Livestock Research Organization (KALRO)
    (2017) eKLR
  • Simeon Kiprotich Lagat Vs Kenya Ports Authority & Another
    (2017) eKLR
  • Geoffrey Mworia Vs Water Resources Management Authority & 2 Others
  • Alfred Nyungu Kimungui Vs Bomas of Kenya
    (2013) eKLR
Jurisdiction invoked
Original constitutional jurisdiction under the Bill of Rights (Articles 10, 23, 41, 47, 236 of the Constitution)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hezekiah Chepkwony & 2 others v Cabinet Secretary, Ministry of Health & 2 others [2020] KEELRC 1603 (KLR)", Case Analysis (2020). Constitutional Petition No 124 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1603/eng@2020-01-31

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