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ELRCDismissedNot stated in judgment· [2024] KEELRC 1451 (KLR)

Kenya County Government Workers Union v Nairobi County Public Service Board & 2 others (Petition E119 of 2021) [2024] KEELRC 1451 (KLR)

Employment and Labour Relations Court
6 June 2023
MOMaureen Onyango
4,195 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers can transfer workers without consent, but dismissed a union's challenge because it brought no supporting evidence.

What this practically means

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Executive summary

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The Petitioner, a trade union registered under the Labour Relations Act, 2007, petitioned on behalf of twelve members of staff of Nairobi City County who were transferred or redeployed by letters dated 1st and 6th July 2021, some to the Nairobi Metropolitan Services. It sought declarations, prohibition, certiorari and a permanent injunction, contending the transfers were arbitrary and violated Articles 10, 19, 22, 23, 28, 41 and 47 of the Constitution and amounted to unlawful redundancies. The 1st Respondent raised a preliminary objection on prematurity and lack of locus standi, citing the exhaustion of remedies under Section 77 of the County Governments Act and Section 87(2) of the Public Service Commission Act; the 3rd Respondent averred the redeployment was lawful on the recommendation of the Regional Commissioner. The court framed four issues centred on jurisdiction and merit. It held that because the transfers were effected by the Nairobi Metropolitan Services, which is not subject to the county public service appeal mechanisms, the preliminary objection failed and was dismissed. On the merits, the court found no evidential support for the allegations of victimization, non-assignment of duties or posting to non-existent offices, noting that no affected employee swore an affidavit or complained, and that transfer is a management prerogative not requiring consultation. The Petition dated 23rd July 2021 was dismissed, with each party bearing its own costs.

Key legal issues

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01

Whether the doctrine of exhaustion barred the petition

Holding

The preliminary objection on exhaustion failed because the transfers were effected by the NMS, which is not subject to the appeal mechanisms under Section 77 of the County Governments Act and Section 87 of the Public Service Commission Act

Reasoning

The court examined the instrument signed under the Intergovernmental Relations Act transferring functions from Nairobi City County to the National Government, which provided for secondment of human resources to the NMS. Since the impugned transfers were effected by the Executive Office of the President through the NMS, the disputes arising did not fall within the statutory appeal mechanisms applicable to county public service decisions, and thus the preliminary objection failed.

p. 11
02

Whether the transfers/redeployments violated the members' constitutional rights

Holding

The petition failed as the petitioner did not prove any violation; allegations of victimization, lack of work and humiliation were unsupported by evidence

Reasoning

The court noted that no affected employee swore an affidavit, lodged a complaint or protested the transfers; indeed all complied and reported to new stations. The court held that transfer is a management prerogative not requiring employee consultation, and the averments of depression, rejection and posting to non-existent positions were mere allegations without proof. The petitioner therefore failed to discharge the burden of proof.

p. 12

Legal principles established

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  • Transfer of an employee is a prerogative of the employer and does not require the employee's permission or consultation
  • Where functions of a county government have been transferred to the Nairobi Metropolitan Services, decisions by the NMS are not subject to appeal under Section 77 of the County Governments Act or Section 87 of the Public Service Commission Act
  • A petitioner must adduce evidence, including sworn testimony of affected employees, to prove allegations of unfair or unconstitutional administrative action

Court orders

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  1. 1.The Preliminary Objection dated 20th June 2022 is dismissed
  2. 2.The Petition dated 23rd July, 2021 is dismissed
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Labour Relations ActSection 62
  • County Governments ActSections 57, 72(2), 77
  • Public Service Commission ActSections 85, 86 (Part XV), 87(2)
  • Employment ActSections 2 and 12
  • Fair Administrative Action ActSection 90
  • Intergovernmental Relations ActInstrument for Transfer of Functions, Articles 5 and 7
  • Constitution of Kenya, 2010Articles 10, 19, 22, 23, 28, 41, 47, 50, 232, 234(2)(i), 235

Cases cited (11)

  • Okiya Omtatah Okoiti v Nairobi Metropolitan Services & 3 Others
    (2020) eKLR
  • Malier Unissa Karim v Edward Oluoch Odumbe
    (2015) eKLR
  • Geofirey Mworia v Water Resources Management Authority & 2 Others
    (2015) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited
    (1969) E.A 696
  • John Mundia Njoroge & 9 Others v Cecilia Muthoni Njoroge & Another
    (2016) eKLR
  • Evans Shipala Mulunji (suing as an Administrator of the Estate of Everlyne Khabukwi Mulunji) v County Government of Kakamega
    (2022) eKLR
  • Association of Public Health Oficers (Aphok) Nairobi Branch v Director General Nairobi Metropolitan Services & 5 Others; Josephine Kibaru Mbae & 4 Others (Interested Parties)
    (2022) eKLR
  • Speaker of the National Assembly v James Njenga Karume
    (1992) eKLR
  • Association of Public Health Oficers of Kenya v Narok County Chief Oficer, Medical Services & 2 Others
    (2019) eKLR
  • Republic v National Environment Management Authority Ex parte Sound Equipment Ltd
    (2011) eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)
    [2020] eKLR
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 22, 23, 41, 47) and Labour Relations Act, 2007 - petition filed in the Employment and Labour Relations Court by a trade union on behalf of members

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, "Kenya County Government Workers Union v Nairobi County Public Service Board & 2 others (Petition E119 of 2021) [2024] KEELRC 1451 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1451/eng@2024-06-06

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