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ELRCDismissedPetition dated 10th November 2016· [2022] KEELRC 123 (KLR)

Lucy Rimanto Molonket v Simon Peter Ole Nkeri & 7 others; Ethics and Anti-Corruption Commission & Director, Criminal Investigation Department (Interested Parties) [2022] KEELRC 123 (KLR)

Employment and Labour Relations Court
28 April 2022
3,949 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 dismissed a senior manager's petition, ruling her redeployment was a normal employer restructuring decision, not harassment or a rights violation.

What this practically means

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Executive summary

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This was a constitutional petition filed in the Employment and Labour Relations Court at Nairobi by a former Head of Sales and Marketing of the 7th Respondent, challenging her redeployment on 30th September 2016 to the position of Head of Special Projects, which she termed a non-existent position created to harass her after she reported the 1st Respondent, the Managing Director/CEO, for sexual harassment. She sought declarations of violation of Articles 25(c), 27, 28, 29, 30(2), 35(1)(b), 41 and 47, compensation of Kshs. 10,000,000, nullification of her redeployment, reinstatement, certiorari quashing Gazette Notice No 5992 appointing the 1st Respondent as MD/CEO, mandamus directing the EACC and another Interested Party to release integrity and criminal reports on the 1st Respondent, a permanent injunction against harassment, a declaration that the 1st to 6th Respondents are unfit for public office, and alternatively payment of the balance of her contract salary. The Respondents maintained the redeployment was part of a Board-sanctioned restructuring following financial losses, and that her sexual harassment complaint was investigated by a select committee which found it unproved. Framing two issues - violation of rights and entitlement to remedies - the Court (Linnet Ndolo J) held the redeployment was a normal human resource function within the employer's prerogative, that the sexual harassment complaint was duly investigated and not proved, and that the 1st Respondent's appointment was lawfully made under Section 5(3) of the State Corporations Act. The Petition was dismissed in its entirety, with each party bearing their own costs.

Key legal issues

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01

Whether the redeployment from Head of Sales and Marketing to Head of Special Projects violated the Petitioner's constitutional rights

Holding

No violation; the redeployment was a normal human resource function within the employer's managerial prerogative, following a Board-sanctioned restructuring that affected other senior managers

Reasoning

The Court accepted the employer's evidence of financial difficulties and a Board-driven restructuring in which eleven senior managers, including the Petitioner, were moved. The position of Head of Special Projects had a job description, and the Petitioner took up the appointment without objection. There was no evidence of targeting, harassment or discrimination, so the employer's prerogative stood undisturbed.

p. 7
02

Whether the employer failed to act on the Petitioner's sexual harassment complaint

Holding

The complaint was properly investigated by a select committee which heard both parties and a witness, and the outcome was communicated; the allegation was not proved and the Board was not unresponsive

Reasoning

Evidence showed the Board resolved on 21st September 2016 to investigate the allegations; a select committee comprising the Company Secretary, Gender Officer and Board Chairman held a hearing on 14th October 2016, took oral and written representations from the Petitioner, the 1st Respondent and his bodyguard, and communicated the outcome by letter dated 21st November 2016. The Court found no fault in the finding that the allegation was unproved.

p. 6
03

Whether the 1st Respondent's appointment as Managing Director/CEO was irregular and fit to be quashed

Holding

The appointment was lawfully made by the Cabinet Secretary under Section 5(3) of the State Corporations Act upon the Board's recommendation; allegations of integrity issues were unsupported

Reasoning

The Cabinet Secretary deponed that the Board recommended three candidates by letter dated 14th January 2015, and he appointed the 1st Respondent after due consideration. The EACC denied any record of complaints or pending criminal or integrity issues against the 1st Respondent. The Petitioner's belated challenge, lodged four months after the appointment, lacked evidential support.

p. 7

Legal principles established

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  • Courts interfere only sparingly with an employer's human resource functions such as transfer and redeployment
  • An employer's deployment prerogative must be exercised for genuine operational reasons; if exercised for collateral purposes the Court will intervene
  • An employer owes a positive obligation on receipt of a sexual harassment complaint to investigate and redress it

Court orders

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  1. 1.The entire Petition is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 25(c), 27(1),(2),(3) & (5), 28, 29(a),(c),(d) & (f), 30(2), 35(1)(b), 41(1) & (2)(b), 47(1) & (2), 50(1) & (2)(d)
  • Leadership and Integrity ActSection 42
  • State Corporations ActSection 5(3)

Cases cited (4)

  • Goeffrey Mworia v Water Resources Management Authority & 2 others
    [2015] eKLR
  • Mary Nyangasi Ratemo & 9 others v Kenya Police Staff Sacco Limited & another
    [2013] eKLR
  • Ken T. Sungu v Kenya Ports Authority
    [202] eKLR
  • Ooko & another v SRM & 3 others (Civil Appeal 195 & 197 of 2019 (Consolidated))
    [2022] KECA 44 (KLR)
Jurisdiction invoked
Constitution of Kenya, 2010 - petition for enforcement of fundamental rights and freedoms (Articles 25(c), 27, 28, 29, 30(2), 35(1)(b), 41, 47 and 50) before the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucy Rimanto Molonket v Simon Peter Ole Nkeri & 7 others; Ethics and Anti-Corruption Commission & Director, Criminal Investigation Department (Interested Parties) [2022] KEELRC 123 (KLR)", Case Analysis (2022). Petition dated 10th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/123/eng@2022-04-28

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