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ELRCDismissedPetition filed 17th August 2021 (Petition dated 16th August 2021)· [2024] KEELRC 1643 (KLR)

Barasa v Principal Secretary, Ministry of Interior & Coordination of National Government & 2 others; Public Service Commission (Interested Party) (Employment and Labour Relations Petition E131 of 2021) [2024] KEELRC 1643 (KLR)

Employment and Labour Relations Court
28 June 2024
OKOcharo Kebira
2,675 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a civil servant's petition over two transfers because he failed to clearly plead exactly how his rights were violated.

What this practically means

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Executive summary

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The Petitioner, a civil servant formerly in the Department of Immigration, was acquitted on 30th January 2020 of stealing by servant charges (Nairobi CMCC No. 393 of 2016), after which his interdiction was lifted with a warning on 30th March 2021. He was transferred to Kisumu by letter dated 19th April 2021, reported on 4th May 2021, but was almost immediately transferred back to Nairobi to the State Department of Industrialization effective 12th May 2021, before receiving his transfer allowance or salary progression computation. He petitioned, alleging violations of Articles 27, 41 and 47 of the Constitution, and sought declarations, mandamus and computation of allowances. The Respondents and the Interested Party (Public Service Commission) opposed, arguing the transfers were lawful under the Public Service Commission Act, 2017 and its Regulations, that the withheld salary was a permitted sanction under Section 70(2) and (3), that the pleadings lacked particularity, and that the court's jurisdiction was prematurely invoked for failure to exhaust internal appeal mechanisms under Section 74 of the Act and Section 9 of the Fair Administrative Action Act. The court framed three issues but determined only the first: whether the petition was properly drawn and presented. Finding that the Petitioner failed to plead with clarity and particularity how his rights were violated, and that submissions cannot substitute for pleadings, the court held the petition improperly crafted and dismissed it, with each party bearing its own costs, without reaching the substantive rights issues.

Key legal issues

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01

Whether the petition met the threshold of a properly drawn and presented petition

Holding

The petition was not properly crafted and presented; it failed to plead with particularity how the Respondents violated the Petitioner's rights

Reasoning

The court applied the principle that allegations of constitutional violations must be pleaded with clarity and particularity, aligning with the purpose of pleadings. Despite the parties' other contentions (including exhaustion), the court found the pleadings deficient and considered it unnecessary to reach the substantive rights issues. Submissions filed by counsel could not cure the deficiencies in the petition.

p. 6

Legal principles established

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  • A party alleging violation of Bill of Rights must plead with clarity and particularity the manner in which the alleged violation occurred
  • Submissions are never a substitute for pleadings and evidence

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each Party is to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 41, 47, 159(2)(d), 234, 252, Chapter 15, 48
  • Public Service Commission Act, 2017Sections 43, 70(2) & (3), 74
  • Public Service Commission Regulations, 2020Regulations 36, 77
  • Fair Administrative Action Act, 2015Section 9
  • Human Resource Policies and Procedures Manual for the Public ServiceSection B.31
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Hezekiah Chepkwony & 2 others v Cabinet Secretary, Ministry of Health & 2 others
    [2020] eKLR
  • Severine Luyali v Ministry of Affairs & International Trade & 3 others
    [2014] eKLR
  • Jeremiah Memba Ocharo v Evangeline Njoka & 3 Others
    [2022] eKLR
  • Mumo Matemo Case
  • Anerita Karimi Case
Jurisdiction invoked
Articles 41, 47 and 27 of the Constitution of Kenya, 2010 (petition for enforcement of Bill of Rights before the Employment and Labour Relations Court)

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, "Barasa v Principal Secretary, Ministry of Interior & Coordination of National Government & 2 others; Public Service Commission (Interested Party) (Employment and Labour Relations Petition E131 of 2021) [2024] KEELRC 1643 (KLR)", Case Analysis (2024). Petition filed 17th August 2021 (Petition dated 16th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1643/eng@2024-06-28

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