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ELRCPartially AllowedPetition dated 19th February 2020 (Employment and Labour Relations Court)· [2022] KEELRC 1062 (KLR)

Sarah Njuhi Mwenda v Head of Public Service & 4 others [2022] KEELRC 1062 (KLR)

Employment and Labour Relations Court
20 January 2022
LNLinnet Ndolo
3,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that public officers in statutory positions cannot be transferred without due process and reinstated the Chief Land Registrar.

What this practically means

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Executive summary

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The Petitioner, a Chief Land Registrar competitively recruited by the Public Service Commission to a statutorily created office under Section 12 of the Land Registration Act, challenged her re-deployment to the State Law Office and Department of Justice. She alleged she was suspended in 2015 over corruption charges later withdrawn, then frustrated from resuming duties, pressured into early retirement, and finally redeployed without notice, consultation or reasons, contrary to Articles 41, 47 and 50 of the Constitution, the Employment Act and the Fair Administrative Action Act. She sought declarations, certiorari, prohibition, mandamus reinstatement and protective reliefs. The Respondents raised three preliminary objections: failure to exhaust internal mechanisms under Section 9(2) of the Fair Administrative Action Act, improper use of a petition to enforce an employment contract, and lack of precision in pleading violations. The Court rejected all three, holding that a threatened subject matter justified direct access to Court, the rules allow a party to elect the mode of pleading, and the pleadings met the precision principle. On the merits, the Court found the Petitioner's appointment was to a statutorily created office, not a mere posting within a scheme of service, so she could only be removed with due process under Article 236. The re-deployment, undertaken without consultation, was held irregular and unlawful. The Court quashed the Head of Public Service circular and the release-on-transfer letter, directed reinstatement, and awarded the Petitioner costs. Protective and prohibitive reliefs were not expressly granted.

Key legal issues

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01

Exhaustion of internal dispute resolution mechanisms

Holding

The Petition was not premature; the threat to the Petitioner's position justified direct recourse to Court, and the Respondents were estopped from invoking internal mechanisms

Reasoning

The Court applied its own precedent that a threatened subject matter entitles a party to seek relief notwithstanding an internal mechanism. It further found that the Respondents, who never initiated the internal process after the interlocutory motion, could not rely on a theoretical mechanism to defeat the Petition. The re-deployment letter taking immediate effect also justified urgency.

p. 4
02

Mode of pleading employment grievances

Holding

A party may choose to bring a complaint by petition, claim or judicial review; the applicable test is whether the legal threshold is met

Reasoning

The Court rejected the contention that the contract of employment had to provide for constitutional enforcement. It held the rules of the Court allow a party to elect the mode of pleading, and the only question is whether the legal threshold for that mode has been satisfied, not whether the contract stipulates it.

p. 4
03

Precision in pleading constitutional violations

Holding

The Petition satisfied the precision principle as it set out the specific violations and constitutional provisions

Reasoning

Relying on Anarita Karimi Njeru and Mumo Matemu, the Respondents argued the violations were not pleaded with precision. The Court examined the pleadings, found the violations and relevant constitutional provisions set out with specificity, drew discrete issues from them, and concluded the precision principle was satisfied.

p. 4
04

Lawfulness of the re-deployment

Holding

The re-deployment was irregular and unlawful because the Petitioner held a statutorily created office competitively recruited, and was removed without consultation or due process

Reasoning

The Court found the Petitioner was interviewed and appointed by the Public Service Commission to the office of Chief Land Registrar created under Section 12 of the Land Registration Act, and this was not a posting within a scheme of service. Article 236 protections applied, and re-designation requires consultation. The re-deployment without due process was therefore quashed and reinstatement ordered.

p. 6

Legal principles established

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  • A public officer competitively recruited to a statutorily created office can only be removed from it pursuant to due process
  • Re-designation of an employee can only be lawfully undertaken after consultation with the affected employee
  • Where the subject matter of a dispute is threatened, a party may approach the Court despite the existence of an internal dispute resolution mechanism

Court orders

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  1. 1.The undated circular titled 'Central Human Resource Management Postings' issued by the Head of Public Service, in so far as it relates to the Petitioner's re-deployment, is quashed
  2. 2.The letter dated 12th February 2020 titled 'Release on Transfer' issued to the Petitioner on behalf of the Cabinet Secretary, Ministry of Lands and Physical Planning, is quashed
  3. 3.The Respondents are directed to reinstate the Petitioner to the position of Chief Land Registrar stationed in the Ministry of Lands and Physical Planning
  4. 4.The Respondents to meet the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 236
  • Employment ActSection 10(5)
  • Fair Administrative Action Act No 4 of 2015Section 4
  • Fair Administrative Action Act No 4 of 2015Section 9(2)
  • Land Registration ActSections 12, 13, 14
  • Public Service ActSection 40
  • Human Resource Policies and Procedures Manual for Public Service, 2016Section B31(2)

Cases cited (4)

  • Zena Achieng Mohamed v County Public Service Board of Kilifi & 6 others
    [2021] eKLR
  • Republic v Anarita Karimi Njeru
    [1979] KLR 154
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    [2013] eKLR
  • Antoinette Bonita Kamau & another v Energy Regulatory Commission
    [2019] eKLR
Jurisdiction invoked
Articles 41, 47, 50 and 236 of the Constitution of Kenya, 2010 (Employment and Labour Relations Court jurisdiction)

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 [2022] KEELRC 1062 (KLR)", Case Analysis (2022). Petition dated 19th February 2020 (Employment and Labour Relations Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1062/eng@2022-01-20

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