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ELRCAllowedJudicial Review proceedings, Notice of Motion dated 8th August 2022 (Mombasa)· [2023] KEELRC 536 (KLR)

Republic v Principal Secretary, Ministry of Lands and Physical Planning & 2 others; Ndambuki (Exparte Applicant) (Judicial Review Application E003 of 2022) [2023] KEELRC 536 (KLR)

Employment and Labour Relations Court
2 March 2023
3,039 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court quashed a civil servant's transfer and ordered the government to pay her salary arrears and damages, warning that ignoring court orders risks contempt.

What this practically means

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Executive summary

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This is a first-instance judicial review ruling of the Employment and Labour Relations Court at Mombasa, delivered by Agnes Kitiku Nzei J on 2nd March 2023, on a Notice of Motion dated 8th August 2022 by Rachael Mutheu Ndambuki, a Principal Land Surveyor and In-Charge of the Survey Office, Taita-Taveta. She sought certiorari to quash her 27th June 2022 transfer from the Ministry of Lands and Physical Planning to the Ministry of Petroleum and Mining, and mandamus to compel payment of salary arrears from February 2022, satisfaction of the Court's decree of 6th October 2020 in Mombasa ELRC Constitutional Petition No. 2 of 2019 (which had quashed an earlier transfer to Garissa, ordered her restoration as In-Charge and awarded ksh. 3,500,000 general damages), handover of the Survey Office under the Director of Surveys' supervision, payment of the decretal damages, and contempt citations in default. The Respondents opposed, arguing the transfer was a normal PSC-driven exercise affecting other officers and that her salary was stopped for failure to file Wealth Declaration Forms under section 31 of the Public Officers Ethics Act, while conceding the decretal sums were pending payment. The Court found the transfer letter was authored by the very party bound by the 6th October 2020 decree and was made in a bid to defeat the Court's orders; the fact that other officers were transferred was irrelevant. Holding that disobedience of court orders corrodes the rule of law and that impunity has no place in civilized society, the Court allowed the Motion in full, issuing certiorari quashing the transfer and mandamus compelling payment of salary arrears, satisfaction of the decree and damages within fourteen days, handover of the office, and contempt proceedings in default.

Key legal issues

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01

Whether certiorari lay against the transfer decision of 27th June 2022

Holding

Certiorari issued to quash the transfer because it was issued in defiance of the 6th October 2020 decree and in a bid to defeat the Court's orders.

Reasoning

The Court had decreed that the Applicant continue as In-Charge Survey Office Taita-Taveta without undue interference and restrained her transfer. The 2nd Respondent, who was party to that decree, transferred her to another Ministry, an act the Court found designed to defeat its orders; the fact that other officers were also transferred did not matter. The transfer was therefore ultra vires and liable to be quashed.

p. 6
02

Whether mandamus lay to compel payment of salary arrears and satisfaction of the prior decree

Holding

Mandamus issued because mandamus compels performance of a public duty where there is unwillingness or defiance by a public body or officer.

Reasoning

Relying on Halsbury's Laws of England, the Court reiterated that mandamus commands performance of a public duty where there is a specific legal right and no equally convenient remedy. The Respondents had disobeyed the decree of 6th October 2020 for over a year, stopped the Applicant's salary and failed to pay decretal damages, so mandamus issued compelling payment and compliance within fourteen days.

p. 6
03

Whether the Respondents' defences (stoppage of salary for failure to declare wealth; transfer being a normal exercise) excused non-compliance

Holding

The defences did not displace the Court's satisfaction that the orders sought were merited; the transfer letter was authored by a party bound by the prior decree.

Reasoning

The Respondents argued the salary stoppage flowed from failure to file Wealth Declaration Forms under section 31 of the Public Officers Ethics Act, and that the transfer affected other officers under PSC Regulation 36(2)(a). The Court held these could not justify a transfer that defeated subsisting orders, and that the Applicant had demonstrated the orders sought were merited.

p. 6

Legal principles established

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  • Court orders are commands enforceable in law, and disobedience of court orders undermining the rule of law must be checked.
  • A transfer made while a subsisting court order protects an officer from transfer or disciplinary action, in a bid to defeat that order, is unlawful and liable to be quashed.

Court orders

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  1. 1.An order of certiorari quashing the decision of the 2nd Respondent to transfer the Ex-parte Applicant to the Ministry of Petroleum and Mining dated 27th June 2022
  2. 2.An order of mandamus compelling the Respondents to pay the Ex-parte Applicant's salary arrears accrued from February 2022 immediately, if not paid, and thereafter monthly
  3. 3.An order of mandamus compelling the Respondents to comply with and satisfy the Court's decree dated 6th October 2020 in Mombasa ELRC Constitutional Petition 2 of 2019 within fourteen (14) days
  4. 4.An order of mandamus compelling the Respondents to hand over the Survey Office, Taita Taveta to the Ex-parte Applicant as the In-Charge under the supervision of the Director of Surveys
  5. 5.An order of mandamus compelling the Respondents to pay the Ex-parte Applicant ksh. 3,500,000 awarded as general damages within fourteen (14) days
  6. 6.In default of compliance, the Respondents shall be cited for contempt of Court
  7. 7.The Notice of Motion dated 8th August 2022 allowed

Authorities

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Legislation

  • Public Service Commission RegulationsRegulation 36(2)(a)
  • Public Officers Ethics ActSection 31
  • Constitution of KenyaArticle 236

Cases cited (1)

  • Rachael Mutheu Ndambuki v Cabinet Secretary, Ministry of Lands and Physical Planning, Public Service Commission and Attorney General
    Mombasa ELRC Constitutional Petition No. 2 of 2019
Jurisdiction invoked
Judicial review jurisdiction under the Employment and Labour Relations Court Act and fair administrative action framework; prior decree in Mombasa ELRC Constitutional Petition No. 2 of 2019

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, "Republic v Principal Secretary, Ministry of Lands and Physical Planning & 2 others; Ndambuki (Exparte Applicant) (Judicial Review Application E003 of 2022) [2023] KEELRC 536 (KLR)", Case Analysis (2023). Judicial Review proceedings, Notice of Motion dated 8th August 2022 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/536/eng@2023-03-02

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