Association of Public Health Officers (Aphok) Nairobi Branch v Director General Nairobi Metropolitan Services & 5 others; Josephine Kibaru Mbae & 4 others (Interested parties) [2022] KEELRC 713 (KLR)

The Court held that issues of appointment and deployment of staff are within the jurisdiction conferred by Section 12 of the Employment and Labour Relations Court Act, 2014 and Article 162(1) of the Constitution, and had no difficulty finding jurisdiction despite the devolution-related context of the Nairobi Metropolitan Services.

Following its own decision in Association of Public Health Officers of Kenya v Narok County Chief Officer, the Court found that no letter of authority from the alleged affected members was filed. The further replying affidavit alleged the member list was fraudulently extracted from a 2017 document, allegations which went unanswered, so the petitioner failed to establish authority to litigate on behalf of the deployed employees.

The Court found the petition did not disclose with specificity how the rights of the deployed employees were threatened or violated, lacking any specific pleadings regarding individual employees or how the impugned deployment letter violated their rights.

Relying on Court of Appeal and ELRC precedent, the Court noted that the County Governments Act and Public Service Act provide appeal mechanisms for such disputes, which ought to have been used first before invoking the constitutional route.

The respondents' unchallenged evidence was that no substantive appointments had been made and the officers held the positions in acting capacity. The petitioners adduced no evidence that the officers were unqualified or that rights were violated.