Indusa v Lake Victoria North Water Works Development Agency (Fromerly Lake Victoria North Water Services Board) & 5 others (Cause 27 of 2022) [2023] KEELRC 3432 (KLR)
The bottom line
#A Kenyan court confirmed employers can lawfully transfer employees during devolution, and refusing to report to a new workplace forfeits salary claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee of the 1st Respondent
The Court held the Claimant was an employee of the 1st Respondent, the appointment and renewal letters having been authored by the 1st Respondent's CEO with place of work as Kakamega Busia Water Supply Headquarters
The letter of appointment dated 21st January 2013 was authored by the CEO of Lake Victoria North Water Services Board with place of work as Kakamega Busia Water Supply. The renewal of 2016 was signed by CPA Kisaka as acting CEO of the 1st Respondent pursuant to a full board resolution. The contract was unambiguous and was authored by the employer, so LVNWSB-KBWS was treated as a work station rather than a separate employer.
Whether the Claimant was eligible for deployment under section 152(3) of the Water Act 2016
The Claimant was eligible for transfer to the county water bodies pursuant to Article 262 and the sixth schedule of the Constitution read with section 152(3) of the Water Act 2016
The Claimant worked at the 1st Respondent's Kakamega Busia Water Supply as Commercial and Finance Manager. He was listed in the fourth schedule of the transfer deed of 23rd September 2016 between the 1st and 4th Respondents. The devolution of water services was mandated by the Constitution and the Water Act 2016 provided for deployment of water services board employees, so he was eligible for transfer.
Whether the Claimant's transfer to the 5th Respondent was lawful
The transfer was lawful; it was a management prerogative executed pursuant to devolution on the same terms and conditions and in the same substantive position, and the disability ground failed as it was never placed before the joint committee
The transfer was necessitated by devolution under Article 262 and the sixth schedule read with section 152(3) of the Water Act 2016. The Claimant was transferred on the same terms and in his substantive position of Commercial and Finance Manager. His acting MD appointment lapsed by the transfer deed. Disability certification postdated the transfer and his injury was not equivalent to disability. Terms were not changed to his disadvantage, so the transfer stood.
Whether the 1st Respondent violated the Claimant's right to information, whether the Claimant was discriminated against and whether the right to dispute resolution was violated
No violation was found; documents were produced at the hearing so no prejudice was suffered, no basis for discrimination existed, and the dispute had been resolved by the Public Service Commission
The Court found no nexus between the transfer and the right to information claim as the documents were produced at hearing and the Claimant had the transfer deed. Discrimination was anchored on transfer terms and disability, both of which failed. The Claimant had appealed to the Public Service Commission, whose decision was to report to the 5th Respondent, and did not satisfy the Court he had pursued that outcome before filing suit.
Whether the Claimant was entitled to salary, allowances and gratuity for the renewal period
The Claimant was entitled to dues only up to August 2016 under the 1st Respondent, with no acting allowance for July and August 2016, and the renewal period did not qualify for gratuity
The Claimant never reported to the 5th Respondent so no employer-employee relationship arose with it. The 1st Respondent's payment of July and August 2016 salary assumed responsibility for gratuity or pension up to August 2016. Clause 15 of the contract required completion of a contract term for gratuity; the renewal period did not meet that condition and the Claimant did not plead the actual period of unpaid gratuity.
Legal principles established
#- Disability is a legal term distinct from mere body injury or sickness; an employer cannot infer disability from an injury, and certification under the Persons with Disabilities Act is required before disability-based claims arise
- An employee must notify the employer of a medical condition within reasonable time and cannot raise disability claims for the first time after a transfer decision
- Transfer of an employee is a management prerogative of the employer; the Court may intervene only where terms and conditions are changed to the employee's detriment, such as demotion or loss of benefits
- Acting in a position confers no legal rights to that position; an acting appointment is temporary and ceases upon transfer of the substantive function
- A party who invokes a dispute resolution mechanism cannot fault the respondents where the dispute was so resolved and the party made no effort to obtain the outcome before filing suit
Court orders
#- 1.The claim dated 20th July 2017 and amended on 14th October 2017 is dismissed.
- 2.Each party to bear own costs in the suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act; contested jurisdiction under Article 165(3)(b) raised by 1st Respondent but the Court determined the claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Indusa v Lake Victoria North Water Works Development Agency (Fromerly Lake Victoria North Water Services Board) & 5 others (Cause 27 of 2022) [2023] KEELRC 3432 (KLR)", Case Analysis (2023). Employment and Labour Relations Court Cause (Claim dated 26th July 2017, amended 14th October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3432/eng@2023-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.