[2023] KEELRC 2867 (KLR)

Barchok v County Government of Uasin Gishu Public Service Board & 4 others (Petition 8 of 2019) [2023] KEELRC 2867 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEELRC 2867 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Eldoret

Petition 8 of 2019

MA Onyango, J

November 2, 2023

Between

Alexander Korir Barchok

Petitioner

and

County Government of Uasin Gishu Public Service Board

1st Respondent

Uasin Gishu County

2nd Respondent

County Secretary, Uasin Gishu County

3rd Respondent

The Member of the County Executive Committee For Health Services

4th Respondent

Chief Officer, Health Service

5th Respondent

Judgment

1. The Petitioner herein is an employee of the Public Service Board of Uasin Gishu County, the 1st Respondent herein. The 2nd, 3rd, 4th and 5th Respondents are the County Government of Uasin Gishu, the Secretary to the County Public Service Board, the County Executive Committee member for health and the Chief Officer, Health Services of Uasin Gishu County respectively.

2. In the Petition dated 2nd August 2019, the Petitioner alleges that the Respondents breached Article 28, 27(1), 10, 232,236 of the Constitution by demoting him without valid reason. The Petitioner seeks the following orders against the Respondents:a.A declaration that the Respondents have contravened the Petitioner’s rights under Article 47 of the Constitution by purporting to vary his terms of service without his consent and to be informed in writing the reasons of the intended demotion.b.A declaration that the purported deployment as per the letter dated 27/3/2019 is in so far as it affects the Petitioner null and void for contravening Article 41 of the Constitutionc.A declaration that in making the purported deployment as per the letter dated 27/3/2019, the Respondents offended the National Values and principles set out in Article 10 of the Constitutiond.A declaration that the Respondents have contravened the guiding principles of leadership and integrity under article 73(2) of the Constitutione.A conservative order restraining the Respondents from contravening Articles 10, 47, 73 and 227 of the Constitution.f.A conservative order restraining the Respondents from advertising, nominating, appointing or filling anyone to the Petitioner’s positions.

3. The Petition is supported by the affidavit of Alexander Korir Barchok, the Petitioner herein.

4. The Respondents opposed the Petition vide their answer to the Petition filed on 2nd May 2023.

The Petitioner’s Case 5. It is the Petitioner’s case that he started working in 1987 as a Public Health Technician. That he rose through the ranks to the position of Chief Public Health Officer. After devolution he was deployed to Uasin Gishu County as the County Disease Surveillance Officer and Malaria Control Programme.

6. It is the Petitioner’s case that on 31st October 2016 he was appointed to act as County Health Administrative Officer reporting to the Chief Officer Health. That in January 2019 he was promoted to the rank of Deputy Chief Public Health Officer.

7. It is the Petitioner’s case that on 9th January 2019 he was demoted by the Acting Chief Officer, Health to the position of Deputy County Public Health Officer and Coordinator, Disease Surveillance and Malaria. That he was further demoted to a Public Heath Officr, Kaptendon Sub-County Hospital where he was reporting to his junior, the Hospital Manager.

8. It is the Petitioner’s case that the person who demoted him had no powers to do so, as only the County Public Service Board which appointed him could demote him.

9. He further contends that before the demotion he was not heard as required under Articles 236(b) of the Constitution and was not subjected to due process of the law.

10. According to the Petitioner, before the alleged demotion, he ought to have been summoned, heard and given a chance to defend himself.

11. The Petitioner avers that under Article 28 of the Constitution, employees have inherent dignity and the right to have that dignity respected and protected. According to the Petitioner, demoting him to a lower grade without valid reason is in contravention of his inherent human dignity especially in view of the values and principles of Public Service in Article 232 of the Constitution.

The Respondents’ Case 12. In their response to the Petition, the Respondents aver that vide a letter dated 27th March 2019, the Petitioner was transferred to Kaptendon Sub County Hospital from Uasin Gishu District Hospital as a Public Health Officer.

13. According to the Respondents, the Petitioner was transferred and not demoted. That having been transferred, the Petitioner was not supposed to be subjected to any disciplinary proceedings.

14. The Respondents aver that the said transfer was horizontal and did not amount to a demotion as the Petitioner still earned the same salary and benefits as he did before the transfer.

15. It is the Respondents’ case that the Petitioner’s transfer was not arbitrary, but was meant to improve service delivery within the county. That the transfer was pursuant to section B.23 of the 1st Respondent’s Human Resource Manual 2015 and the Human Resource Policy & Procedures Manual for Public Service.

16. According to the Respondents, the Petitioner appealed against the transfer vide two letters both dated 2nd May 2019 whose contents were noted by the Respondents. That before the Petitioner’s complaints could be addressed, he rushed and filed the instant petition.

17. It is the Respondents contention that the employment and labour relations regime in Kenya bestow upon an employer the prerogative to ensure that employees perform their duties as and where they are located and that a transfer of an employee is one such prerogative of an employer subject only to reasonable notice to enable the subject employee report to the new station of transfer.

18. The Respondents also filed a notice of preliminary objection dated 14th April 2023 on grounds that:a.The Petition is frivolous, vexatious, ill-conceived and bad in law and an abuse of the court of the process of this honourable courtb.The Petition is fatally and incurably defective as it offends the doctrine of exhaustion of the available statutory remediesc.This Petition is fatally and incurably defective as it offends the provisions of section 77(2) of the County Governments Act and as such cannot stand or be ventilated before this honourable courtd.The court’s jurisdiction has been prematurely invoked as the petitioner has not exhausted the dispute resolution mechanism established under section 77 of the County Governments Act and the issues herein ought to be referred to the public service commission for determination at first instancee.The Petition does not meet the threshold of constitutional petition.

19. As directed by the court on 14th June 2023, both the Petition and the Preliminary objection were disposed of together by way written submissions.

Respondents’ Submissions To The Preliminary Objection 20. The Respondents in their submissions filed in court on 27th June 2023 submitted that under section 77 of the County Governments Act 2012 as read together with Clause C.34 of the County Government of Uasin Gishu, Human Resource Policy& Procedures Manual 2015, any decision rendered by the County Public Service Board is appealable to the Public Service Commission for redress.

21. The Respondents maintained that the Petitioner’s grievance ought to have first been referred to the Public Service Commission before the intervention of the court was sought. The case of, Secretary, County Public Service Board & Another v Hulbhai Gedi Abdille (2017) eKLR was cited in support of this position.

22. Further, according to the Respondents, under section 85 and section 87(2) of the Public Service Commission Act, the Petitioner is estopped from filing the instant petition before exhausting the procedure provided for in the said provisions of the law. To buttress this position, counsel for the Respondents cited the court of Appeal decision in Nakuru Civil Appeal no. E136 of 2022 as consolidated with Nakuru Civil Appeal No. 137 of 2022, The Clerk, Nakuru County Assembly & 4 others vs Kenneth Odongo & 7 others eKLR and Geoffrey Muthinja Kabiru vs Samuel Munga Henry & 1756 others(2015)eKLR

23. The court was thus urged to strike out the Petition in limine with costs to the Respondents as the jurisdiction of this court has been wrongly and prematurely invoked before the exhaustion of other dispute resolution avenues provided by statute.

Petitioner’s Submissions To The Preliminary Objection 24. The Petitioner on his part filed his submissions dated 6th July 2023 and contended that this court has the jurisdiction to entertain the instant Petition as espoused by Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act.

25. The Petitioner submitted that he has made reasonable efforts to exhaust the available remedies albeit frustrations from the Respondents and thus informing his decision to approach this court. The Petitioner maintained that he appealed against his transfer which amounted to a demotion in the spirit of exhausting the available remedies through writing a letter to the Respondents but those letters were not respondent to which clearly showed the lack of the Respondents will to grant audience to the Petitioner and therefore occasioning the approach to this honourable court. Counsel for the Petitioner cited the case of William Odhiambo Ramogi & 3 Others vs Attorney General & 4 others: Muslims for Human Rights & 2 others (2020) eKLR to support the Petitioner’s position.

26. The Petitioner urged this court to dismiss the Preliminary Objection, that the Respondents have failed or refused to grant him a chance to fight for his rights and continue to do so by trying to stop him from seeking justice as the preliminary objection amounts to nothing but obstruction of justice.

27. The parties having filed submissions on the Preliminary Objection dated 14th April 2023, I will determine the Preliminary objection first as it may dispose of the Petition.

28. The Court of Appeal has recently had an opportunity to pronounce itself on the question of interpretation of section 77 of the County Governments Act,2012 in the case cited by the Respondents, Secretary County Public Service Board and Another -vs- Hulbhai Gedi Abdulla (2017) eKLR where the court observed;“There is no doubt that the Respondent initiated the judicial review proceedings in utter disregard to the dispute resolution mechanism availed by Section 77 of the Act. The Section provides not the only forum through which the Respondent could agitate her grievance at first instance, but the jurisdiction thereof is a specialized one specifically tailored by the legislators to meet needs such as the Respondent’s. In our view, the most suitable and appropriate recourse for the Respondent was to invoke the appellate procedure under the Act rather than resort to the judicial process in the first instance.”

29. It is therefore settled that the procedure therein must be exhausted before the court’s intervention is invoked. As was held by the Court in above, where redress of any particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.

30. Flowing from the above, the instant Petition is premature for failure to exhaust the appellate process established under section 77 of the County Governments Act as read with section 87(2) of the Public Service Commission Act.

31. Consequently, the Notice of Preliminary Objection dated 14th April 2023 is hereby upheld and the Petition dated 2nd August 2019 is struck out with no orders as to costs.

DATED, DELIVERED AND SIGNED AT ELDORETTHIS 2NDDAY OF NOVEMBER 2023. M. ONYANGOJUDGE