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ELRCPartially AllowedCause No 230 of 2016· [2022] KEELRC 940 (KLR)

Michael Muriuki Muturi v Water Resources Management Authority [2022] KEELRC 940 (KLR)

Employment and Labour Relations Court
28 January 2022
SRStella Rutto
4,017 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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Kenyan employers can transfer staff, but the Employment Court ruled frequent, unexplained transfers are unreasonable and unpaid transfer allowances stay claimable while employment continues.

What this practically means

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Executive summary

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The claimant, an employee of the Water Resources Management Authority transferred from the Nairobi sub regional office to Isiolo, sought a permanent injunction against the transfer, a mandatory injunction to compel remittance of statutory deductions, SACCO and bank loan repayments, transfer allowances of about Kshs 229,725, costs and interest. The respondent defended the transfer as an exercise of its statutory and HR Manual mandate to deploy staff countrywide, attributed remittance delays to transitional challenges, and argued the transfer allowance claim was time barred. The court framed three issues. First, it held the transfer was lawful, being grounded in the respondent's mandate and clause 10.2.1 of the HR Manual, but unreasonable, as the claimant had been moved to five stations in four years without justifiable reasons and with no Transfer Policy; the employer's discretion had to be exercised reasonably and fairly, with regard to the employee's social circumstances. Second, it held the transfer allowance claim (limited to the Mombasa–Malindi and Malindi–Mombasa transfers, the Kibwezi move predating employment) was not statute barred, since the cause of action arises only when the employer definitively refuses payment, and the outstanding claim within a subsisting employment relationship amounts to a continuing injury under section 90 of the Employment Act. Third, the deductions claim was overtaken by events as remittances had been made. The permanent injunction was refused, the court declining to micro-manage the respondent's human resource functions, and the respondent was urged to develop a Transfer Policy. The court awarded the transfer allowance at prevailing rates at the material time, and ordered each party to bear its own costs given the subsisting employment relationship.

Key legal issues

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01

Lawfulness and reasonableness of the transfer to Isiolo

Holding

The transfer was lawful as it flowed from the respondent's statutory mandate, but was unreasonable given the frequency of transfers and absence of justifiable reasons or a transfer policy.

Reasoning

The respondent derived its power to deploy staff from the Constitution, the Water Act and clause 10.2.1 of its HR Manual, making the transfer lawful. However, transferring the claimant to five stations in four years, with the longest stint under two years, without justifiable reasons and without any Transfer Policy, rendered the exercise of the discretion unreasonable. An employer must be humane and considerate to an employee's social circumstances.

p. 4
02

Whether the transfer allowance claim is statute barred

Holding

The claim is not statute barred; it constitutes a continuing injury under section 90 of the Employment Act.

Reasoning

The cause of action arises when the employer makes a definite decision not to pay and communicates it to the employee. There was no evidence the respondent ever refused to pay. The employee, aware of the policy entitlement, had a legitimate expectation of payment. The claim remains outstanding within a subsisting employment relationship, so the injury is continuing and only ceases when employment ends with the amount unpaid.

p. 4
03

Remittance of statutory deductions, SACCO and bank loan repayments

Holding

The respondent had remitted the deductions and loan repayments; the claim was overtaken by events.

Reasoning

The respondent produced payment vouchers, bank cheques and schedules confirming remittances to the appropriate institutions. The court ascertained from the record that the statutory deductions and bank loan repayments had been submitted by the time of hearing, attributed to transitional challenges from the transfer of water functions from the Ministry of Water and Irrigation.

p. 5

Legal principles established

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  • An employer has a lawful prerogative to transfer employees, but that discretion must be exercised reasonably and fairly, with regard to the employee's social circumstances.
  • Where an employer has never indicated that it would not pay an allowance and the employment relationship subsists, the claim for the allowance constitutes a continuing injury and is not statute barred.
  • Courts should not grant orders that micro-manage an employer's human resource functions.

Court orders

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  1. 1.The court awards the claimant transfer allowance, payable by the respondent as per the prevailing rates at the material time
  2. 2.Each party to bear its own costs
  3. 3.The respondent to develop a Transfer Policy to guide the manner in which transfer of employees is undertaken

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 6(3)
  • Constitution of Kenya, 2010Article 43
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment ActSection 90
  • Water Act
  • Limitation of Actions ActSection 4(1)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Sandy Mokeira Morara vs The Principal Secretary, Ministry of Land and Physical Planning & another
    Nairobi ELRC No. 31 of 2018
  • Geoffrey Mworia vs Water Resource Management Authority & 2 others
    Nyeri ELRC Petition No. 4 of 2015
  • Alfred Mwangi vs Delmonte
    Nairobi ELRC No. 193 of 2013
  • Geoffrey Muthinja & another vs Samuel Muguna Henry & 176 others
    (2015) eKLR
  • Attorney General & Another vs Andrew Maina Githinji & another
    (2016) eKLR
  • Letang vs. Cooper
    [1964] 2 All ER 929 at 934
  • Nampak Corrugated Wadeville vs Khoza
    (JA14/98) [1998] ZALAC 24
  • Judicial Service Commission vs Gladys Boss Shollei & another
    [2014] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the ELRC under Article 162(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Michael Muriuki Muturi v Water Resources Management Authority [2022] KEELRC 940 (KLR)", Case Analysis (2022). Cause No 230 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/940/eng@2022-01-28

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