Namasaka & 9 others v Kenya Medical Supplies Authority & 2 others; Public Service Commission & another (Interested Parties) (Petition E149 of 2022) [2023] KEELRC 2004 (KLR)
The bottom line
#Kenya's Employment Court ruled KEMSA's restructuring and redundancy unlawful because only the Public Service Commission can establish or abolish public offices.
What this practically means
#Executive summary
#Key legal issues
#Whether KEMSA's restructuring constituted establishment and abolition of office reserved to the Public Service Commission
The exercise was establishment and abolition of office within Article 234(2)(a) and, undertaken without PSC involvement, was ultra vires and null and void ab initio
The general redundancy notice and CEO's presentations showed re-examination and redesignation of roles, introduction of new offices, remodelling and abolition of old ones, with staff competing openly for new positions. The respondents asserted the exercise was the Board's exclusive mandate. There was no evidence of PSC delegation, and KEMSA never informed the PSC. The constitutional threshold for regulating the public service rests with the PSC.
Whether the redundancy process was lawful
The redundancy was unlawful and unfair ab initio and in violation of Section 40(1) of the Employment Act
Because the intended termination was founded on unconstitutional establishment and abolition of offices, it could not be sanitized by later purported compliance with Section 40(1). A lawful redundancy is an internal process; abolition of offices followed by open public recruitment without priority to existing staff breaches Section 40(1) and established case law on redundancy.
Res judicata
The petition is not barred; the issues of establishment and abolition of office contrary to Article 234(2)(a) were new and were not determined in the earlier consolidated petitions, and some parties differ
The earlier judgment of 27/5/2022 concerned a general redundancy notice dated 4/11/2021 and declined to pre-empt the Section 40 process. The present issues arise from the notice of 10th June 2022 and involve Article 234 questions not heard previously; the petitioners and both interested parties were not all parties to the earlier consolidated petition. Applying Henderson v Henderson and IEBC v Maina Kiai, the bar is not satisfied.
Whether the petitioners' fundamental rights and freedoms were violated
No specific finding of violation was made as the claim was not sufficiently proved; no orders issue on that head
Although the petition sought declarations of violation of rights under Articles 10, 73, 232, 236 and compensation, the Court found the rights claim not established on the pleadings and evidence and declined to grant relief on that basis, confining relief to the unlawfulness of the restructuring and redundancy process.
Legal principles established
#- Establishment and abolition of offices in the public service is a constitutional mandate of the Public Service Commission under Article 234(2)(a), and a state corporation undertaking that exercise without PSC involvement acts ultra vires the Constitution
- A redundancy process tainted by unconstitutional establishment and abolition of offices cannot be cured by subsequent compliance with Section 40(1) of the Employment Act
- A genuine redundancy is an internal process under Section 40(1) of the Employment Act and cannot involve abolition of offices and open public recruitment without priority to existing staff
- Res judicata does not bar a petition raising new issues and parties not before the court in the earlier suit
Court orders
#- 1.A declaration that the decision of the 1st Respondent contained in the Advert published on 26th July, 2022 in its website and Daily Newspapers including the Standard Newspaper of 2nd August, 2022 for a new expanded Management team of 31 vacancies is unconstitutional, null and void ab initio
- 2.An order of Certiorari to remove to the Court and quash the decision of the 1st Respondent contained in the said advert for the 31 management vacancies and any other attendant and subsequent process and appointment thereof
- 3.An order of Prohibition prohibiting the respondents from pursuing the purported redundancy process as contained in letters of General redundancy and internal memos dated 10th June, 2022 and 15th July, 2022 as the process is tainted with illegality
- 4.Costs of the suit to the petitioners
- Jurisdiction invoked
- Articles 10, 73, 232, 234 and 236 of the Constitution of Kenya, 2010; Employment and Labour Relations Court jurisdiction over employment and constitutional rights in labour matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namasaka & 9 others v Kenya Medical Supplies Authority & 2 others; Public Service Commission & another (Interested Parties) (Petition E149 of 2022) [2023] KEELRC 2004 (KLR)", Case Analysis (2023). Petition No. 149 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2004/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.