[2023] KEELRC 3400 (KLR)

Abisai v Cabinet Secretary, Ministry of Physical Planning & 3 others (Cause E689 of 2023) [2023] KEELRC 3400 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEELRC 3400 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E689 of 2023

SC Rutto, J

December 8, 2023

Application is dismissed

Between

Lapezoh Ortega Abisai

Claimant

and

The Cabinet Secretary, Ministry Of Physical Planning

1st Respondent

The Director Kenya Institute Surveying & Mapping Ministry Of Physical Planning

2nd Respondent

The Director Human Resources Management & Development, Ministry Of Physical Planning

3rd Respondent

The Honourable Attorney General

4th Respondent

Ruling

1. What is before this Court for determination is a Notice of Motion Application dated 23rd August 2023, through which the Applicant seeks the following orders;1. Spent.2. Spent3. The Letter and action by the Principal Secretary, Ministry of Lands, Public Works, Housing and Urban Development, State for Lands and Physical Planning, dated 27/2/2023, deploying and or transferring the Claimant from the Kenya Institute of Surveying and Mapping to Survey Headquarters, be suspended, pending the hearing and determination of this suit.4. The letter and action by the Principal Secretary, Ministry of Lands, Public Works, Housing and Urban Development, State for Lands and Physical Planning, dated 27/2/2023, deploying and or transferring the Claimant from the Kenya Institute of Surveying and Mapping to Survey Headquarters, be Quashed and or Nullified.5. The costs in the Application be provided.

2. The Application is grounded on the annexed Affidavit of the Applicant, Mr. Lapezoh Ortega Abisai, sworn on 23rd August 2023. Briefly, Mr Abisai who describes himself as a Principal Land Surveyor avers that:i.He was transferred from Ugunja (Ugenya) survey office which is under the Directorate of Surveys to the Kenya Institute of Surveying and Mapping as a land surveyor (trainer) on the 19th of August 2021. ii.He was assigned duties accordingly as a trainer in land surveying; the field of Survey Control.iii.According to the September 2020 approved establishment of the Ministry of Lands and Physical Planning, the Kenya Institute of Surveying and Mapping was in a deficit of 4 principal lecturers. He therefore applied for re-designation from a Principal Land Surveyor to a Principal Lecturer.iv.His application was successful and the Director of Human Resources Management and Development (DHRM&D) through a memo dated 19th October 2021 requested for comments from the head of surveys and Kenya Institute of Surveying and Mapping.v.The Director of Surveys gave a favourable comment while the Director of Kenya Institute of Surveying and Mapping gave an adverse comment without any reasons. He simply wrote “Not Recommended” on the application letter.vi.The DHRM&D showed him the adverse comment and requested him to square it out with his supervisor. Upon meeting the Director of Kenya Institute of Surveying and Mapping over the adverse comments, he told him that the position of Principal Lecturer is reserved for other people and not him. He further said that he would never allow him to become a lecturer at the Kenya Institute of Surveying and Mapping and directed him to get out of his office.vii.On 25th January 2022, he formally complained to the Cabinet Secretary over the conduct of the Director of Kenya Institute of Surveying and Mapping.viii.The Cabinet Secretary promised to investigate the issue and report to him on the direction to be taken. He has made several attempts to address the issue of his application for re-designation with the DHRM&D who has always told him that, together with the Public Service Commission, they are working on the issue, but he never knew that the delay was a ploy to kick him out of the KISM at all material times.ix.On the 2nd of March 2023, he received a transfer letter from the Director of KISM transferring him back to Survey of Kenya. Effectively, he was given less than 24 hours to report to the new station since he was already administering classes.x.He believes the transfer/deployment was given in bad faith as he has no proven record of misconduct from the time he was transferred to KISM; KISM is in need of lecturers in his technical field; his application for re-designation has not been finalized.; his complaint letter to the Cabinet Secretary is yet to be resolved; Students were in their mid-term, and there was no urgency for him to leave; and he has been at the station for barely one and a half years, yet there are other officers from the Director of Surveys who have served for more than 10 years.xi.Upon confirmation that there are several vacancies for lecturers at KISM, he has been denied the opportunity and transfer by the very officers mandated by the constitution to protect his interests

3. The Application is opposed vide a Replying Affidavit sworn on 19th September 2023, by Ms. Janerose Karanja, the Director, Human Resource Management & Development at the Ministry of Lands & Physical Planning. Briefly, she avers that:i.The Applicant was transferred among other two hundred and five (205) officers in the Department of Survey due to the need for efficient and effective service delivery vide the Cabinet Secretary’s memo dated 13th August 2021. ii.The said transfer was communicated to the Applicant vide a letter dated 19th August 2021, transferring him from Ugenya survey office to Kenya Institute of Survey and Mapping (KISM) Ruaraka, an institution under the State Department for Lands.iii.He later reported to the new station and was deployed accordingly vide a letter dated 1st September 2021. iv.The Applicant wrote to the Public Service Commission requesting for re-designation from the position of a Principal Land Surveyor job group N to the position of a Principal Lecturer job group N at the Kenya Institute of Highways and Building Technology (KIHBIT) vide a letter dated 2nd September 2021. v.The Public Service Commission responded to his request vide a letter dated 4th November 2021 directing the Ministry of Lands and Physical Planning to provide comments on a duly filed PSC 3 form.vi.The Ministry informed the Public Service Commission vide a letter dated 22nd September 2021 that KIHBIT vacancies are not in the Ministry’s Authorized Establishment and the Ministry was not in a position to fill the PSC 3 form since the post requested falls under the State Department for Infrastructure.vii.The Applicant made an application to the Cabinet Secretary vide a letter dated 12th September 2021 seeking re-designation from Principal Land Surveyor JG “N” to Principal Lecturer JG “N” at KISM.viii.However, the Application was not recommended by the Director KISM since there were other long serving lecturers who were awaiting promotion in the vacant positions and that permission from Public Service Commission though sought, had not been granted and on that basis, the Applicant was advised to wait for all to be considered upon permission being granted. The Applicant could not hear any of that and insisted that the Ag Director KISM endorse his request.ix.Since the Applicant was adamant for an endorsement despite the explanation given to him, the Ag. Director KISM had no option but endorse on the same “Not Approved” on the Applicant’s letter.x.It is on the above premise that the Applicant complained to the Cabinet Secretary against the Director of KISM vide a letter dated 25th January 2022, in which a response by the Director of Human Resource Management was communicated to the Applicant vide letter dated 4th February 2022. xi.Along the way and in the course of duty, the Applicant was issued with a Notice to Show Cause letter from the Director KISM dated 3rd February 2023 where he was required to show cause for absenteeism from duty and failure to attend a staff meeting on 1st February 2023 without lawful permission.xii.The Applicant was granted seven (7) days to respond and provide justification why disciplinary measures should not be taken against him.xiii.In his response to the Notice to Show Cause dated 9th February 2023, the Applicant lacked decorum and respect, as it contained rude language and displayed his difficulty to subordinate to lawful authority.xiv.On the persistent and continued misconduct on the part of the Applicant, the Deputy Director Academics vide a Notice to Show Cause letter dated 18th February 2023 addressed the Applicant to explain himself on absenteeism which occasioned two lessons on the 9th February 2022 not being attended to and also failure to attend a meeting called by the Ag. Director KISM on 11th February 2022. xv.The many episodes of misconduct on the Applicant’s part notwithstanding, the decision to transfer him from KISM to Survey was not an isolated case that only affected him.xvi.On the contrary, it is a transfer affecting several officers aimed at improving service delivery to the public and is not in any way laced with malice as against the Applicant.xvii.The Applicant on deployment to survey headquarters, Ruaraka vide a letter dated 27th February 2023, reported on the 6th March 2023 and was immediately assigned duties without any disciplinary measures taken against him.xviii.The Applicant had persistently wanted to move from KISM to KIHBIT immediately after he first reported for duty at KISM. In actual sense, he requested to be transferred to KIHBIT a day after he had reported.

Submissions 4. When the matter came up for mention on 21st September 2023, the Court directed that the Application be canvassed by way of written submissions. Both parties complied and I have considered their respective submissions.

Analysis and Determination 5. Having considered the orders sought in the Application, the Affidavit in support thereof, the Respondents’ Response as well as the rival submissions, it is clear that the singular issue for determination at this juncture is whether the Applicant has made out a case for grant of the orders sought. Put another way, should the Court suspend the Applicant’s transfer letter dated 27th February 2023 deploying him from the Kenya Institute of Surveying and Mapping (KISM) to the Survey Headquarters pending the hearing and determination of the main suit?

6. The Black’s Law Dictionary (10th Edition) defines the term “Suspend” to mean interrupt, postpone or to temporarily keep a person from performing a function, occupying an office, holding a job, or exercising a right or privilege.

7. Essentially, the orders sought by the Applicant will have an injunctive effect and will essentially stay his transfer from KISM to the Survey Headquarters pending the hearing and determination of the main suit.

8. Therefore, in deciding whether to grant the orders sought by the Applicant, the Court is to be guided by the principles set out in the celebrated case of Giella v Cassman Brown [1973] EA 358. In this regard, the Applicant has to establish a prima facie case, and that if the orders are denied, he will suffer irreparable injury. Further, and in case of doubt, the issue in contention ought to be decided on the scale of a balance of convenience.

9. Applying the above principles to the case herein, the pertinent question that ought to be determined at the outset is whether the Applicant herein has made out a prima facie case with a probability of success.

10. In the case of Mrao v First American Bank of Kenya Limited & 2 Others (2003) KLR 125, a prima facie case was described as follows:“a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

11. Further, the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR held that:“The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”

12. Fundamentally, the Applicant in this case was required to show that his right has been violated or is threatened with violation by the Respondents, in which case the burden would shift to the Respondents to explain or rebut the Applicant’s claim.

13. Revisiting the facts of this case, the Applicant has termed his transfer from KISM to the Survey Headquarters as having been done in bad faith. In support of this position, the Applicant has laid out six grounds, key among them being that KISM is in need of lecturers in his technical field and that he has been at the station for barely one and a half years yet there are other officers from the Directorate of Surveys who have served there for more than 10 years. He further avers that his application for re-designation was yet to be finalized.

14. Opposing the Application, the Respondents contend that the Applicant’s transfer was not an isolated case as several officers were affected. The Respondents further state that the transfer was aimed at improving service delivery to the public.

15. Having analyzed the material placed before me, albeit in a cursory manner as the Court is not conducting a mini trial, it is clear that the transfer the Applicant seeks to impugn was communicated to him through a letter dated 27th February 2023. The record reveals that the Applicant reported to the Director of Surveys on 6th March 2023 and was deployed in the GDM division.

16. Flowing from the foregoing events, it is therefore evident that the Applicant has not disclosed a right that is threatened with violation thus necessitating the Court’s intervention by way of suspending his transfer from KISM to the Survey Headquarters.

17. What’s more, it is notable that the orders sought if granted will be final in nature and have a retrospective effect despite the Court not having had the opportunity to take evidence and apply its mind accordingly.

18. Further, I am not satisfied that the Applicant will suffer irreparable damage should the Court decline to grant the orders sought. I say so because in the Memorandum of Claim, the Applicant has asked the Court inter alia, to set aside the transfer from KISM to the Survey Headquarters.

19. Therefore, in the event the Applicant’s Claim succeeds in the end, he may be granted the very orders he now seeks at this interim stage. It may very well be said that the Applicant will not suffer irreparable loss if the orders sought are not granted.

Orders 20. In view of the foregoing, the Court declines to grant the orders sought in the Application dated 23rd August 2023. Consequently, the Application is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2023. ………………………………STELLA RUTTOJUDGEAppearance:For the Applicant Ms. Katagai instructed by Mr. RakoroFor the Respondent No AppearanceCourt Assistant Abdimalik HusseinORDERIn 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 RUTTOJUDGE5