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ELRCPartially AllowedPetition dated 5th December, 2022· [2023] KEELRC 1779 (KLR)

Mwangi v Chief Executive Officer Kenya Medical Supplies Authority & 2 others (Petition E210 of 2022) [2023] KEELRC 1779 (KLR)

Employment and Labour Relations Court
14 July 2023
2,867 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, an accountant employed by the Kenya Medical Supplies Authority (KEMSA), petitioned the Court complaining that the 1st Respondent, KEMSA's Chief Executive Officer, transferred her from Nairobi to the Mombasa Regional Depot in retaliation for raising discrepancies in documentation supporting payment of legal fees of Kshs 8,780,538.00 to Oraro & Co. Advocates. She sought declarations that the transfer was null and void, that the 1st Respondent was unfit for public office, certiorari and prohibition, general damages and costs. The 2nd Respondent (Ministry of Health, through the Principal Secretary) distanced itself from KEMSA's staff management; the 1st Respondent filed no response. Isolating two issues - whether the Respondents violated the Petitioner's constitutional rights and whether the orders sought should issue - the Court found the timing of the transfer (three days after the discrepancies were raised) a strange coincidence, noted she was transferred to report to a junior officer and to a station with no accounting work and no ERP access, and that none of this was controverted. It held the transfer violated Articles 236(a) and 41 of the Constitution, and further breached the Head of Public Service Circular restricting staff deployment during the transition period, demonstrating disregard of Article 10 national values. Judgment was entered for the Petitioner: a declaration that the transfer was null and void, an order of certiorari quashing it, general damages of Kshs 1,500,000.00 under Article 23(3)(e), and costs against the 1st Respondent. Other prayers, including disqualification of the 1st Respondent from office and prohibition, were not granted.

Key legal issues

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01

Whether the Petitioner's transfer from Nairobi to Mombasa was a constitutional violation

Holding

Yes - the transfer was effected three days after she raised discrepancies in payment documentation for Oraro & Co. Advocates, was uncontroverted, and amounted to victimization contrary to Article 236(a) and a breach of fair labour practices under Article 41

Reasoning

The court found the timing of the transfer (three days after she raised discrepancies) a strange coincidence, noted the transfer assigned her to report to a junior officer and to a station with no accounting systems, and that the 1st Respondent filed no response to controvert the allegations. It concluded she was penalized for performing her duty in accordance with KEMSA's Standard Operating Procedures.

p. 5
02

Whether the 1st Respondent violated the Head of Public Service Circular on staff deployment during the transition period

Holding

Yes - the transfer was undertaken despite a directive from the Principal Secretary and Circular No. OP/CAB.26/4A/VOL.1(4) prohibiting significant deployment of staff during the transition period, with no explanation offered

Reasoning

The 1st Respondent had been instructed to rescind decisions made without consulting the KEMSA Board, including deployment of staff. No response was filed to the Petition, so no explanation was given for contravening the Circular. This further demonstrated disregard for national values and principles of governance under Article 10.

p. 6
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What remedies flow from the established violation

Holding

A declaration that the transfer was null and void, an order of certiorari quashing it, general damages of Kshs 1,500,000.00 under Article 23(3)(e) of the Constitution, and costs against the 1st Respondent

Reasoning

The court invoked Article 23(3)(e), which empowers it to grant compensation for breach of fundamental rights, and considered Kshs 1,500,000.00 reasonable compensation for the violation of the Petitioner's rights. Relief was limited to those heads; other prayers sought were not granted.

p. 6

Legal principles established

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  • The transfer of a public officer shortly after she raised discrepancies in payment documentation amounts to victimization for performing the functions of office in accordance with the Constitution and the law, contrary to Article 236(a) and Article 41

Court orders

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  1. 1.A declaration that the decision of the 1st Respondent to transfer the Petitioner from Nairobi to Mombasa Regional Depot was in violation of the Constitution and therefore null and void
  2. 2.An order of certiorari quashing the decision transferring the Petitioner from Nairobi to Mombasa Regional Depot
  3. 3.The 1st Respondent shall pay the Petitioner general damages assessed at Kshs 1,500,000.00
  4. 4.The 1st Respondent shall meet the costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10; Article 23(3)(e); Article 41; Article 48; Article 159(2)(d); Article 236(a)
  • Kenya Medical Supplies Authority Actnot specified
  • Public Procurement and Asset Disposal Act (PPADA)Section 56(2)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Circular No. OP/CAB.26/4A/VOL.1(4) dated 19th September, 2022 (Head of Public Service)not specified
  • KEMSA Human Resources and Procedures ManualClause 5.22

Cases cited (2)

  • Kenya Human Rights Commission & another v Non-Governmental Organisation Coordination Board & another
    (2018)
  • Rachel Mutheu Ndambuki v Cabinet Secretary, Ministry of Lands and Physical Planning & 2 others
    (2020) eKLR
Jurisdiction invoked
Articles 23(3)(e) and 165 of the Constitution (constitutional petition for violation of fundamental rights and judicial review remedies)

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, "Mwangi v Chief Executive Officer Kenya Medical Supplies Authority & 2 others (Petition E210 of 2022) [2023] KEELRC 1779 (KLR)", Case Analysis (2023). Petition dated 5th December, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1779/eng@2023-07-14

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