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ELRCPartially AllowedConstitutional Petition dated April 28, 2020· [2023] KEELRC 1000 (KLR)

Mbalanya v Kenya Ports Authority (Employment and Labour Relations Petition 3 of 2020) [2023] KEELRC 1000 (KLR)

Employment and Labour Relations Court
20 April 2023
ANAgnes Kitiku Nzei
3,759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court voided an employee's transfer because his employer no longer employed him after his college became a separate state corporation.

What this practically means

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Executive summary

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The Petitioner, formerly an Assistant Training Officer (Equipment Operations) Grade HM3 posted to Bandari College, challenged his transfer by the Respondent vide a letter dated May 17, 2019 from Bandari College to Conventional Cargo Operations, Lamu Jetty. He sought declarations that the transfer was unlawful, null and void ab initio, that he had a legitimate expectation to work as a Trainer at Bandari Maritime Academy, and an order of certiorari quashing the posting with reinstatement of his status as at May 16, 2019, plus costs. The Respondent defended the transfer as an exercise of managerial prerogative under its Human Resource Manual, contending the Petitioner remained its employee posted to Lamu Port, a strategic LAPSSET investment. The court framed four issues: the Petitioner's employment status as at May 17, 2019, the lawfulness of the transfer, whether a constitutional issue arose, and entitlement to relief. The court held that upon the Bandari Maritime Academy Order 2018 (Legal Notice No 233) published November 28, 2018, Bandari College became the separate body corporate Bandari Maritime Academy, whose staff included the Petitioner under paragraph 22(1); hence the Respondent could not lawfully transfer him, and the transfer was null and void. It rejected unpleaded claims of an asset and business transfer agreement, holding parties bound by their pleadings. It further held the petition raised no constitutional issue, the grievances being ordinary employment matters adequately covered by statute. Judgment was entered for the Petitioner: the transfer was declared unlawful and void ab initio, the posting was quashed, his employment status as at May 16, 2019 was reinstated forthwith, with costs and interest at court rates. The legitimate expectation declaration was not granted.

Key legal issues

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01

Employment status of the Petitioner as at May 17, 2019

Holding

The Petitioner was no longer the Respondent's employee; he had become an employee of Bandari Maritime Academy, a separate body corporate, upon Legal Notice No 233 taking effect on November 28, 2018.

Reasoning

The court found that Bandari College ceased to exist as a department of the Respondent when it was succeeded by Bandari Maritime Academy under the Bandari Maritime Academy Order 2018. Under paragraph 22(1) of the Order, staff of Bandari College were deemed staff of the Academy. The Respondent produced no pleaded asset and business transfer agreement to show the Petitioner remained its employee, and parties are bound by their pleadings.

p. 7
02

Lawfulness of the transfer

Holding

The purported transfer was unlawful and of no legal effect since the Respondent had no power to transfer an employee of a separate legal entity.

Reasoning

Having found the Petitioner was an employee of Bandari Maritime Academy as at May 17, 2019, the Respondent could not lawfully or arbitrarily transfer him to its own Lamu Port. The authorities cited by the Respondent on employers' prerogative to transfer were held irrelevant because there was no employer-employee relationship justifying the transfer.

p. 7
03

Whether the petition raises a constitutional issue

Holding

No; the grievances were ordinary employment issues adequately addressable under the Employment Act, the State Corporations Act and other statutes.

Reasoning

The Petitioner pleaded breach of the Employment Act, the Human Resource Manual and unlawful transfer, all of which are ordinary employment matters. Following Court of Appeal and High Court authority, where statutory remedies exist a litigant should not found a cause of action directly on the Constitution without alleging inadequacy of statutory remedies.

p. 7

Legal principles established

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  • Upon publication of a statutory order establishing a new state corporation as a body corporate, staff of the defunct entity who opt to remain become employees of the new corporation, and the former employer cannot thereafter transfer them.
  • Where legislation has been enacted to give effect to a constitutional right, it is not permissible to found a cause of action directly on the Constitution without challenging the legislation, where adequate statutory remedies exist.

Court orders

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  1. 1.A declaration that the transfer of the Petitioner vide a letter of posting dated May 17, 2019 was unlawful and lacked any lawful effect, and was null and void ab initio.
  2. 2.The Respondent's decision to post the Petitioner to Lamu vide a letter dated May 17, 2019 is quashed, and the Petitioner's employment status as at May 16, 2019 is reinstated forthwith.
  3. 3.The Petitioner is awarded costs of the petition and interest thereon at Court rates.

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 47
  • State Corporations ActCap 446, Section 3(1)
  • Bandari Maritime Academy Order, 2018 (Legal Notice No 233)Clauses 3(2), 22(1)
  • Employment ActSection 10(5)
  • Human Resource Manual 2017 (Respondent's)Clause B.13(a), B.13(c)
  • Labour Relations Actnull
  • Public Officers Ethics Actnull

Cases cited (6)

  • Henry Ochido -vs- Ngo Coordination Board
    [2015] eKLR
  • James Sande Muyeka & 6 Others -vs- Super Foam Limited
    [2015] eKLR
  • Summaya Athman Hassan -vs- Paul Masinde Simidi & Another
    [2019] eKLR
  • Bernard Murage -vs- Fineserve Africa Limited & 3 Others
    [2015] eKLR
  • Harrikinson -vs- Attorney General of Trinidad and Tobago
    [1980] Ac 265
  • Barbara De Klerk
    null
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 41 and 47 of the Constitution invoked in the pleadings)

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, "Mbalanya v Kenya Ports Authority (Employment and Labour Relations Petition 3 of 2020) [2023] KEELRC 1000 (KLR)", Case Analysis (2023). Constitutional Petition dated April 28, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1000/eng@2023-04-20

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