Waweru v Public Procurement Regulatory Authority; Institute of Certified Public Accountants & another (Interested Parties) (Constitutional Petition E075 of 2023) [2023] KEELRC 1763 (KLR)
The bottom line
#A Kenyan court voided a public officer's transfer that punished him for audit work, ruling employer-initiated re-designations that harm careers are unfair labour practices.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition was premature for want of exhaustion of internal appeal process
- 2.Whether the transfer was a re-designation per section 40 of the Public Service Commission Act, 2017 and whether it was fair and reasonable
- 3.Whether the genuine grievances of the petitioner against James Kihara blended the transfer decision rendering it illegal and unfair
- 4.Whether the petitioner is entitled to the remedies as prayed for
Key legal issues
#Prematurity for want of exhaustion of internal appeals
The petition was not premature; the respondent's own position showed the internal appeal process was spent or exhausted
The respondent argued the petition was premature for non-exhaustion yet simultaneously urged the appeal was belated. The Court found this contradictory: by the respondent's own argument the appeal process was spent or the initial appeal determined, hence exhausted. The petition could therefore proceed.
Whether the transfer was a re-designation contrary to section 40 of the Public Service Commission Act, 2017
The transfer was a re-designation; it was not initiated by the petitioner, was adverse to his career development, and was unfair and unreasonable, contravening Articles 41 and 47
Applying section 40 PSC Act and the respondent's HR Manual, re-designation requires the officer's consent and adherence to appointment criteria. The petitioner never initiated the move and had invested in training as an internal auditor. The re-designation harmed his career progression and amounted to an unfair labour practice.
Whether the transfer was informed by victimisation for performing audit duties
The transfer blended genuine unresolved grievances arising from the petitioner's audit work and was victimisation and discrimination contrary to Article 236
The petitioner raised audit queries including against James Kihara, his proposed supervisor. The Court found genuine grievances informed the transfer, making it unfair per section 46 of the Employment Act, 2007. The petitioner was victimised and harassed for performing his duties, contravening Article 236 of the Constitution.
Remedies
Petitioner entitled to remedies as prayed except general damages, since he continued working with full pay
The Court found the violations established but held that general damages were not justified because the petitioner suffered no financial loss, continuing to work with full pay throughout. Declarations and the conservatory order were granted together with costs.
Legal principles established
#- A transfer amounting to re-designation initiated by the employer rather than the employee, and adverse to the employee's career development, is an unfair and unreasonable decision and an unfair labour practice
- A transfer imposed on the basis of unresolved but genuine employee grievances, arising from performance of duties, is victimisation contravening Article 236 of the Constitution
Court orders
#- 1.Declaration that the respondent's unilateral actions of transferring the petitioner from senior internal auditor (Nairobi) to senior compliance officer (western region) vide letter dated 16th March 2023 infringed on the petitioner's right to fair administrative action and were unlawful
- 2.Declaration that the respondent's transfer of the petitioner vide letter dated 16th March 2023 did not meet constitutional, labour law and practice standards and is null and void
- 3.Conservatory order restraining the respondent from transferring the petitioner to any station where he would be under the supervision, command, control and management of Mr. James Kihara unless his grievances in that regard are resolved
- 4.1st respondent to pay the petitioner's costs of the proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 41, 47 and 236 of the Constitution of Kenya, 2010
Relief refused
#General damages for violation of the petitioner's rights
The petitioner continued to work with full pay, so the violations did not justify an award of general damages
Costs
The 1st respondent to pay the petitioner's costs of the proceedings
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court returns that the petition was not premature at all.
The re-designation as per transfer decision is found averse to the petitioner's career development. It must therefore be declined as unfair and unreasonable.
The Court finds that the transfer amounted to contravention of Article 236 of the Constitution as urged for the petitioner.
judgment is hereby entered for the petitioner against the 1st respondent
The 1st respondent to pay the petitioner's costs of the proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Public Procurement Regulatory Authority; Institute of Certified Public Accountants & another (Interested Parties) (Constitutional Petition E075 of 2023) [2023] KEELRC 1763 (KLR)", Case Analysis (2023). Petition dated April 20, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1763/eng@2023-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.