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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether certiorari lay against the transfer decision of 27th June 2022
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.
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.
Whether mandamus lay to compel payment of salary arrears and satisfaction of the prior decree
Mandamus issued because mandamus compels performance of a public duty where there is unwillingness or defiance by a public body or officer.
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.
Whether the Respondents' defences (stoppage of salary for failure to declare wealth; transfer being a normal exercise) excused non-compliance
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.
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.
Legal principles established
#- 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
#- 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.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.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.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.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.In default of compliance, the Respondents shall be cited for contempt of Court
- 7.The Notice of Motion dated 8th August 2022 allowed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.