Methodist Church in Kenya Trustees Registered & another v Maso (Cause E005 of 2023) [2024] KEELRC 1424 (KLR)
The bottom line
#A Kenyan court confirmed employers can transfer staff freely, and ruled an unsigned, undated affidavit counts for nothing, granting the Methodist Church interim orders.
What this practically means
#Executive summary
#Key legal issues
#Validity of the respondent's Replying Affidavit
The Replying Affidavit is invalid for being undated and unsigned by the Commissioner for Oaths, offending the Oaths and Statutory Declarations Act; the defect cannot be cured under Article 159
Section 5 of the Oaths and Declarations Act requires the commissioner to state the place and date the affidavit is taken. The respondent's affidavit was undated and the commissioner had not signed it. Counsel was alerted in open court on 22 April 2024 but did not regularise it. Following the Supreme Court's decision in Konchellah v Sunkuli, such an affidavit is fatally defective and deemed nonexistent, leaving the application effectively unopposed.
Lawfulness of the respondent's transfer
Transfer is an employer's operational prerogative; the respondent's defiance without good cause amounts to insubordination
Relying on Toroitich, Kimani and Luyali, the court held that subject to sufficient notice an employee must take lawful directions of the employer. The respondent's claims of malice, pregnancy and discrimination were unsubstantiated absent a valid reply; discrimination allegations require evidence with particulars. Failure to obey a lawful direction under Section 44(4) of the Employment Act would amount to gross misconduct.
Lawfulness of the suspension
Suspension pending disciplinary action is lawful and procedural, but the employer must conclude the process expeditiously
Citing Kurgat and Mutwol, the court held there need be no contractual provision for suspension and it enables meaningful investigation. However, citing Omwoyo, Mutiso and Ng'ang'a, prolonged suspension causes anxiety and is unreasonable; the claimants were directed to expedite the disciplinary process within a reasonable time.
Legal principles established
#- An affidavit that is undated and unsigned by the Commissioner for Oaths is invalid and of no legal value
- Transfer and deployment of staff is a management prerogative which the court will interfere with only in rare and exceptional circumstances
- A suspension pending disciplinary proceedings is procedural, but an employer must conclude disciplinary proceedings within a reasonable time
Court orders
#- 1.Restraining the respondent, her associates, servants, followers, sympathizers or any person acting on her behest from interfering with church programmes, buildings, premises, services, inciting members, conducting church services in the Delta Circuit or preaching against church leaders
- 2.The respondent to vacate the claimant's office and residence and hand over any property of the Methodist Church in Kenya Delta Circuit in Singwaya Synod with immediate effect
- 3.The respondent to cease her duties, occupation or possession of claimant's property and to stop preventing the new minister from carrying out his duties or withholding office equipment
- 4.Where the respondent fails to comply within seven days, the claimants to seek the services of the police Coast region, County Commanders Lamu and Tana River to enforce compliance at the full costs of the respondent
- 5.Costs of the application awarded to the claimant
- 6.Time to file a response to the claim extended by 14 days
- 7.Mention for hearing directions on 5 June 2024
- Jurisdiction invoked
- Not stated in judgment (Employment and Labour Relations Court, interim application within a claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Methodist Church in Kenya Trustees Registered & another v Maso (Cause E005 of 2023) [2024] KEELRC 1424 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1424/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.