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ELRCPartially AllowedPetition dated April 20, 2023

Waweru v Public Procurement Regulatory Authority; Institute of Certified Public Accountants & another (Interested Parties) (Constitutional Petition E075 of 2023) [2023] KEELRC 1763 (KLR)

Employment and Labour Relations Court
24 July 2023
3,008 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 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

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Executive summary

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The petitioner, employed by the Public Procurement Regulatory Authority since 2016 and appointed Senior Internal Auditor in August 2022, was transferred by letter dated March 16, 2023 from the Internal Audit Directorate at Head Office in Nairobi to the position of Senior Compliance Officer in the Western Regional Office at Kisumu, reporting through Mr. James Kihara - an officer whom the petitioner's audit queries had taken to disciplinary proceedings. He appealed internally; the Human Resource Management Advisory Committee declined the appeal without hearing him, and a second appeal to the Board went unanswered. He petitioned the Employment and Labour Relations Court, seeking declarations that the transfer infringed his right to fair administrative action and was null and void, a conservatory order restraining transfer under Mr. Kihara's supervision, general damages and costs. The 1st respondent, through the Hon. Attorney General, argued the transfer flowed from a legitimate reorganisation, that the petitioner was familiar with compliance work, and that the petition was premature for failure to exhaust internal appeals. The Court found the prematurity argument contradictory and misconceived. It held the transfer was in substance a re-designation under section 40 of the Public Service Commission Act, 2017, initiated by the employer and adverse to the petitioner's career development, making it an unfair labour practice contrary to Articles 41 and 47. Genuine unresolved grievances arising from his audit work informed the transfer, amounting to victimisation contrary to Article 236 and unfairness under section 46 of the Employment Act. Judgment was entered for the petitioner with declarations and a conservatory order; general damages were refused because he continued working with full pay. Costs were awarded against the 1st respondent. Judgment delivered by Byram Ongaya, Principal Judge, on July 24, 2023.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition was premature for want of exhaustion of internal appeal process
  2. 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. 3.Whether the genuine grievances of the petitioner against James Kihara blended the transfer decision rendering it illegal and unfair
  4. 4.Whether the petitioner is entitled to the remedies as prayed for

Key legal issues

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01

Prematurity for want of exhaustion of internal appeals

Holding

The petition was not premature; the respondent's own position showed the internal appeal process was spent or exhausted

Reasoning

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.

p. 6
02

Whether the transfer was a re-designation contrary to section 40 of the Public Service Commission Act, 2017

Holding

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

Reasoning

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.

p. 6
03

Whether the transfer was informed by victimisation for performing audit duties

Holding

The transfer blended genuine unresolved grievances arising from the petitioner's audit work and was victimisation and discrimination contrary to Article 236

Reasoning

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.

p. 6
04

Remedies

Holding

Petitioner entitled to remedies as prayed except general damages, since he continued working with full pay

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.1st respondent to pay the petitioner's costs of the proceedings

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 41, 47 and 236 of the Constitution of Kenya, 2010

Relief refused

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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

p. 6

Costs

The 1st respondent to pay the petitioner's costs of the proceedings

Quotable passages

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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.
p. 6exhaustion of internal remedies
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.
p. 6unfair re-designation
The Court finds that the transfer amounted to contravention of Article 236 of the Constitution as urged for the petitioner.
p. 6victimisation of public officers
judgment is hereby entered for the petitioner against the 1st respondent
p. 6disposition
The 1st respondent to pay the petitioner's costs of the proceedings.
p. 6costs - final orders

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, "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.