Kenya Union of Clinical Officers v Chief Officer Health Services County Government of Marsabit & 2 others

CGM/DHA/HR/78/VOL 1 (128) dated 4th December 2025 which purports to effect transfers of 19 clinical officers from their current workstations. 2. THAT an order of certiorari do issue to bring into this Court for purposes of quashing the decision/directives/resolutions issued by the Respondents redeploying 19 members of the Applicant as conveyed vide the letter Ref: CGM/DHA/HR/78/VOL 1 (128) dated 4th December 2025. 3. THAT the costs of this application be provided for. 2. The Motion is supported by the Affidavit sworn on 16 th December 2025 by George Gibore, the Applicant's General Secretary. 3. Mr. Gibore deposes that on 4th December 2025, the Respondent issued a Redeployment Notice affecting 19 members of the Applicant Union, notifying them of its decision to redeploy them from their existing workstations to various hospitals. 4. He contends that the impugned redeployments were undertaken in disregard of the applicable Human Resources for Health requirements and standards and 2

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without adherence to the fair and transparent labour processes prescribed by law and sound human resource management practice. 5. According to Mr. Gibore, the redeployments were intended to harass, intimidate, coerce or otherwise compel the affected Clinical Officers to resume duty pursuant to their strike which was suspended following the Court's orders of 10th December 2025, which had been issued to facilitate good faith negotiations on the parties' outstanding employment issues. 6. He further avers that on 5th December 2025, the Applicant wrote to the Respondent demanding the withdrawal of all transfer instructions issued pursuant to the Redeployment Notice dated 4th December 2025 and requesting consultations with the Union to address the outstanding disputes. The Respondent, however, did not accede to those demands. 7. It is Mr. Gibore’s further deposition that the Respondent's decision to effect the redeployments during the subsistence of the strike and even before the Court ordered the suspension of the strike demonstrates that the transfers were not bona fide service redeployments but were disciplinary or coercive measures in disguise. 3

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8. Mr. Gibore maintains that unless restrained, the Respondent's conduct will violate the affected employees' right to fair labour practices. 9. He further asserts that the decision to redeploy the Applicant's members was arbitrary, unreasonable and in contravention of Article 47 of the Constitution. In his view, the Applicant's members serve under conditions comparable to those of other health professionals, the only distinction being their respective cadres, and were therefore entitled to equal treatment consistent with the constitutional principles of equality and non-discrimination in the workplace. 10.In opposition to the substantive Motion, the Respondents filed a joint Replying Affidavit sworn on 22nd July 2026 by Arero Halkano, the County Secretary of the 3rd Respondent. 11.Mr. Halkano deposes that the officers affected by the redeployments approached the Court without first exhausting the available internal appeal mechanisms. 12.He maintains that the redeployments were purely administrative measures undertaken in the interest of enhancing service delivery within the County. 4

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13.According to Mr. Halkano, the Departmental Health Human Resource Advisory Committee convened on 3rd December 2025 to deliberate on the rationalisation of staff within the County's health department. During the meeting, it was noted that although staff had initially been recruited for Sololo Level IV Hospital, the facility had not yet been operationalised, necessitating their deployment to other health facilities pending its commissioning. 14.He further avers that the Committee observed that the County's healthcare needs had since evolved owing to staff resignations, failure by some newly recruited officers to report for duty, changing service delivery demands and other operational developments. Consequently, the Committee recommended a review and rationalisation of staff deployment to ensure continuity and efficiency in healthcare service delivery and forwarded its recommendations to the Chief Officer, Medical Services. 15.Acting on those recommendations, the Chief Officer, Medical Services, redeployed 30 officers across the health department, including 19 Clinical Officers, who were required to report to their new duty stations on or before 14th December 2025. 5

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16.Mr. Halkano states that while a number of the redeployed officers complied with the directive, the 19 Clinical Officers failed to report to their designated stations, prompting the commencement of disciplinary proceedings against them. 17.He deposes that show-cause letters were issued to the affected Clinical Officers on 16th December 2025. According to him, the officers failed to provide satisfactory explanations for their failure to report to their new duty stations and continued to absent themselves from duty, leading to the stoppage of their salaries. 18.Mr. Halkano denies the Applicant's assertion that the redeployments were intended to harass, intimidate, coerce or otherwise compel the Clinical Officers to resume duty, describing the allegation as wholly unfounded. 19.He further avers that the Respondents had previously instituted proceedings seeking a declaration that the strike undertaken by the Clinical Officers was unprotected. In a Ruling delivered on 10th December 2025, the Court found that the strike did not satisfy the legal threshold applicable to essential services and 6

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suspended it for 30 days to enable the parties to engage in good faith negotiations. 20.He avers that the Court also directed that no employee should be victimised or subjected to disciplinary action on account of participating in the strike. Consequently, Mr. Halkano maintains that there was neither basis nor justification for victimising any officer. 21.It is therefore his assertion that no member of the Applicant Union has been subjected to disciplinary action by reason of participation in the strike. 22.Mr. Halkano further deposes that, to date, 9 Clinical Officers have reported to their respective redeployed stations and continue to discharge their duties there. He adds that all the other health workers redeployed pursuant to the directive dated 4th December 2025 have similarly reported to their assigned stations, save for 10 Clinical Officers who, according to him, continue to absent themselves from duty without lawful justification. 23.He further avers that following the consent order issued on 5 th May 2026 staying the disciplinary proceedings, 8 members of the Applicant lodged appeals against the redeployment decisions. Those appeals were considered by 7

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the Departmental Health Human Resource Advisory Committee on 5 th June 2026, which rendered its decision after due deliberation. 24.According to Mr. Halkano, the Committee resolved, among other things, that the affected officers ought to have first reported to their respective duty stations pending the determination of their appeals. The Committee further found that the appeals had been lodged out of time. 25.Mr. Halkano maintains that the redeployment directive dated 4 th December 2025 remains valid and in force, and that the officers who have failed to report to their assigned duty stations are in breach of their contractual obligations. 26.He further deposes, on the advice of the County Attorney, that Section 72(1) of the County Governments Act vests the power to deploy county public officers within their respective departments. Accordingly, the Chief Officer, Medical Services, was acting within his statutory mandate in redeploying the Clinical Officers to various workstations based on operational and service delivery requirements. 27.Mr. Halkano contends that the Applicant has not placed before the Court any evidence demonstrating that the redeployments were anything other than 8

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legitimate administrative decisions undertaken in the interests of efficient service delivery. 28.He further asserts that although the affected officers are members of the Applicant Union, they remain employees of the 3 rd Respondent and are bound by the terms and conditions of their respective contracts of employment. 29.Mr. Halkano maintains that the Applicant's members were fully aware that the redeployments were undertaken solely for administrative purposes aimed at responding to the County Government's evolving healthcare service needs. Submissions 30.On 3rd July 2026, the Court directed that the substantive Motion be canvassed by way of written submissions. However, by the time of writing this judgment, neither party had filed submissions. Accordingly, the Court has proceeded to determine the Motion on the basis of the pleadings, affidavits and the material on record. Analysis and Determination 31.Having considered the pleadings, affidavits and the material placed before it, the Court finds that the sole issue for determination is whether the Notice of Motion dated 5th January 2025 (sic) is merited. Differently expressed, the 9

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question is whether the Court should quash the redeployment directive dated 4th December 2025 by which 19 members of the Applicant were transferred to different workstations. 32.The Applicant's case is founded on the contention that the impugned redeployments were undertaken without adherence to the applicable Human Resources for Health requirements and standards. 33.The Applicant further contends that the redeployment was not a genuine administrative exercise but a calculated attempt to harass, intimidate and coerce the affected Clinical Officers into resuming duty following the strike that was subsequently suspended by the Court on 10th December 2025 to facilitate good faith negotiations. 34.According to the Applicant, the timing of the redeployments, having preceded the suspension of the strike, demonstrates that they were undertaken in bad faith. 35.The Respondents dispute the Applicant’s assertions and maintain that the redeployments were purely administrative 10 decisions necessitated by

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operational requirements and undertaken solely in the interest of enhancing service delivery within the County. 36.The Respondents' position is that the redeployment directive stemmed from the deliberations of the Departmental Health Human Resource Advisory Committee at its meeting held on 3rd December 2025. During that meeting, the Committee observed that although staff had been recruited for Sololo Level IV Hospital, the facility had not yet been operationalised, with the result that those officers had been temporarily deployed to other health facilities pending its commissioning. 37.The Respondents further state that the Committee noted several operational changes within the County's health facilities, including staff resignations, failure by some newly recruited officers to report for duty, evolving service delivery demands and other administrative developments. These factors, they contend, necessitated a review and rationalisation of staff deployment to ensure continuity and efficiency in the delivery of healthcare services across the County. 38.In support of the Respondents’ position, the minutes of the Departmental Health Human Resource Advisory Committee meeting held on 3 rd December 11

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2025 were produced. The said minutes confirm that the Committee deliberated on the rationalisation of staff and resolved to recommend the redeployment of identified personnel to designated health facilities. 39.The Court has further reviewed the redeployment directive dated 4 th December 2025, which was produced by both parties. A perusal of the directive reveals that it affected 30 health care professionals, of whom only 19 were Clinical Officers. The remaining officers included Medical Officers, Nursing Officers and Health Administrative Officers. 40.From the foregoing, it is evident that the redeployment exercise was not confined to members of the Applicant Union. 41.The Court further notes that the redeployment directive expressly refers to the anticipated operationalisation of Sololo Level IV Hospital, a matter that had featured in the deliberations of the Departmental Health Human Resource Advisory Committee on 3rd December 2025. 42.In the premises, the Court finds the Respondents' position that the redeployments were undertaken as an administrative measure intended to address service delivery requirements to be plausible and consistent with the documentary evidence on record. 12

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43.Indeed, had the redeployment exercise been intended solely to harass, intimidate or victimize members of the Applicant Union as a result of the industrial action, as alleged, other healthcare professionals who were not Clinical Officers would not have been affected by the directive. 44.In any event, the general principle is that, save where the law or the terms of employment dictate otherwise, the Court will be slow to interfere with an employer's managerial prerogative in matters relating to internal human resource administration, including the transfer and deployment of employees. 45.The Court amplified this principle in Geoffrey Mworia v Water Resources Management Authority & 2 others [2015] KEELRC 1124 (KLR), where it observed as follows: “The court will very sparingly interfere in the employer’s entitlement to perform any of the human resource functions such as recruitment, appointment, promotion, transfer, disciplinary control, redundancy, or any other human resource function. To interfere, the applicant must show that the employer is proceeding in a manner that is in contravention of the provision of the Constitution or legislation; or in breach of the agreement 13

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between the parties; or in a manner that is manifestly unfair in the circumstances of the case; or the internal dispute procedure must have been exhausted or the employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process.” 46.A similar position was adopted by the Court in Henry Ochido v NGO Coordination Board [2015] eKLR, where it held as follows: “It is therefore not in the choice of an employee to dictate where they wish to work, once work has been created, and in the view of the employer they find that a particular employee is best placed in a certain location or work station, the duty on the employer is to inform the employee and the employee’s role is to ensure their work performance in the allocated station. To otherwise contest work allocation in a set work station on the basis that the Respondent has not properly allocated such a station is to challenge that prerogative of the employer.” 47.The common thread running through the foregoing authorities is that the power to transfer or deploy employees forms part of an employer's managerial prerogative. Consequently, the Court will only interfere where it is 14

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demonstrated that the employer has exercised that power in contravention of the Constitution or the law, in breach of the parties' contractual arrangements, or in a manner that is manifestly unfair in the circumstances of the case. 48.What’s more, Section 72(1) of the County Governments Act vests the relevant County Chief Officer with the statutory authority to deploy county public officers within the department. 49.As stated elsewhere in this judgment, the impugned redeployment directive affected not only members of the Applicant Union but also other healthcare professionals serving in the 3rd Respondent County Government. 50.The evidence on record further demonstrates that the exercise was, in part, prompted by the anticipated operationalisation of Sololo Level IV Hospital and the need to rationalise staff deployment across the County's health facilities. 51.To this end, there is no evidential basis for the Applicant's assertion that the redeployments were intended to perpetuate unfair labour practices in contravention of the Constitution, the Employment Act or the Labour Relations Act. 15

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52.Equally, the Court finds no evidence that the 1 st Respondent, in issuing the redeployment directive dated 4th December 2025, acted outside the scope of the statutory mandate conferred upon him by Section 72(1) of the County Governments Act, or that the decision was unlawful, irrational or procedurally improper. 53.In the final analysis, the Court finds that the Applicant has failed to demonstrate that the Respondents exercised their power of deployment in a manner inconsistent with the Constitution or any applicable legislation so as to warrant the intervention of this Court. 54.Accordingly, the Court finds no basis upon which to interfere with the redeployment directive. 55.Consequently, the Notice of Motion dated 5th January 2025 (sic) is dismissed with an order that each party shall bear its own costs. DATED, SIGNED and DELIVERED at NYERI this 31st day of July, 2026. ……………………………… STELLA RUTTO JUDGE 16

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In the presence of: For the Applicants Mr. Ataka appearing with Mr. Odongo For the Respondents Mr. Odhiambo appearing with Ms. Gekone Court assistant Ndati ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 17

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