https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1807

Simiyu v CEO National Council of Persons with Disabilities & another (Judicial Review E035 of 2026) [2026] KEELRC 1807 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1807 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Judicial Review E035 of 2026 JK Gakeri, J June 25, 2026 Between Isaac Manyonge Simiyu Applicant and The CEO National Council of Persons with Disabilities 1st Respondent National Council of Persons with Disabilities 2nd Respondent Ruling 1The Applicant filed the instant Chamber Summons application dated 1st April, 2026 seeking leave to apply for judicial review orders of Certitari, prohibition, and Mandamus against the Respondents and leave to operate as stay of implementation of the Respondent’s decision transferring the Applicant pending the hearing and determination of substantive motion. 2When the matter came up on 2nd April 2016 under certificate of urgency, the Court directed service of the application and a mention on 15th April 2026 for further directions when the Respondent’s counsel sought time to apply for the striking out of the pleadings and subsequently filed a Notice of Preliminary Objection dated 13th May 2026 and a Replying Affidavit sworn on even date. 3The Respondents contend that;1.The application is fatally, defective for failure to exhaust mandatory internal grievance and dispute resolution mechanisms, under the Respondent’s Human Resource Policies and Procedures Manual 2020.2.The application contravenes Section 9(2) and (3) of the Fair Administrative Action Act on exhaustion of internal remedies.3.The Court lacked jurisdiction to entertain the application at this stage. 4.The dispute relates to an administrative transfer, a lawful exercise of human resource management authority and a managerial prerogative. Respondent’s submissions 5Counsel submitted that the Respondent’s Human Resource Policy and Procedure Manual had a grievance resolution mechanism where a grievance is reported to the immediate supervisor and appeal to the Executive Director, and to the Council if unsatisfied. 6Reliance was placed on the decisions in Speaker of National Assembly V James Njenga Karume (1992) eKLR Geoffrey Muthinja & 1756 others (2015) eKLR on the need to exhaust other dispute resolution mechanism before invoking the Court’s jurisdiction. 7Reliance was also placed on the sentiments of the Court in Johnson Adera V Robi Mbugua Njoroge & another ELRC JR No. 089 of 2025 that it was not the role of Courts to supervise internal grievance handling processes, to submit that the substratum of the application was defective, was filed prematurely and was misconceived and incompetent for want of exhaustion of the statutory remedy. 8The Applicant did not file submissions. 9As to whether the Respondents’ Notice of Preliminary Objection meets the threshold of a Preliminary Objection the Court is guided by the sentiments of Sir Charles Newbold P and Law JA in Mukisa Buscuit Manufacturing Co. Ltd V West End Distributors Ltd (1969) EA 696 and since the Respondents are challenging the Courts jurisdiction on the ground of exhaustion of internal mechanism. The Court is satisfied that the Notice of Preliminary Objection meets the threshold of a Preliminary Objection. See also Hassan Nuanje Charo V Khatib Mwashetani & 3 others (2014) eKLR and Nitin Properties Ltd V Singh Kalsi Said Shabal & another (1995) eKLR. 10The only issue for determination is whether the Respondents Preliminary Objection is merited. 11Both the Court of Appeal and the Supreme Court of Kenya have upheld the position that where a dispute resolution mechanism exists out of Court it ought to be exhausted before the Court’s jurisdiction was invoked as held in NGO’s Coordination Board v EG & 4 others; Katiba Institute (Amicus Curle) (2023) eKLR, Geoffrey Muthinja and 2 others Samuel Muguna Henry & 1756 others (Supra), Speaker of national Assembly V Karume (Supra) Albert Chaurembo Mumba & 7 others V Maurice Munyao & 7 others (2019) eKLR among others. 12The doctrine of exhaustion ensures that there is postponement of judicial consideration of a matter as other resolution mechanisms are activated and parties will only proceed to Court if the grievance is not resolved. 13However, case law demonstrates that there are circumstances in which the doctrine of exhaustion may be excepted. Nevertheless, these instances are not clearly defined and explained. 14See William Odhiambo Ramogi & 3 others V Attorney General & 4 others (2020) eKLR, Kenya Revenue Authority & 2 others V Doshi Iron Mongers Ltd (2024) KECA 640 (KLR), Republic V Independent Electoral & Boundaries Commission (IEBC) & others Ex parte National Super Alliance (NASA) Kenya (2017) eKLR and Republic V Dedan Kimathi University of Technology Ex parte Mula Stephen Mutuku (2022) KEAC 358 eKLR. 15It is common ground that the Applicant is an employee of the 1st Respondent and is a person living with disability a fact within the Respondent’s knowledge as evidenced by the Respondent’s card issued on 7th June 2021, serial number 0002682 and which describes the Applicant’s disability as physical. 16It is equally not in contest that vide letter dated 2nd March 2026, the Respondent informed the Applicant that he had been deployed to Nandi County and was required to make arrangements to report to the new duty station on or before 6th March 2026. 17In accord with the Respondent’s Human Resource Policy and Procedure Manual, the Applicant appealed the decision on various grounds such as had not been notified of the deployment, factors considered in allocating the station, the Applicant’s dependency on others and reason for the deployment. 18According to the Respondents the deployment was in accord with the Human Resource Manual 2020 Edition. 19For unexplained reasons, the Respondents did not avail a copy of the entire Human Resource Policies and Procedure Manual for perusal by the Court. 20Strangely, the 4 pages of the Human Resource Manual filed by the Respondent have no provision on transfer, which is critical in this matter. 21The Court is interested in appreciating the circumstances in which an employee could be transferred, the various categories of transfer and at whose instance, the relevant procedure and the appellate process, if any. This is because an appeal for reconsideration of a proposed transfer is not a grievance stricto sensu. Relatedly, the term disability is defined in very broad terms. It is trite that employees in the public service are deemed aware that they can be transferred to any part of the country where public services are needed and as correctly stated by the Respondent, transfer of staff is an administrative decision made by the employer in exercise of its managerial prerogative and Court’s seldom interfere, and do so sparingly, if they must. 22Although the Respondent maintains that the internal mechanism of resolving the issue had not been exhausted, it did not explain why the Applicant’s appeal dated and filed with the Respondent on 2nd March 2026 had not been responded to by 1st April 2026 when the instant application was instituted by the Applicant. 23It is not in contest that the Respondent’s Human Resource Policy and Procedure Manual of June 2020 has a grievance resolution procedure on matters similar to the transfer complained of by the Applicant under clause 12 from the immediate supervisor to the Council if the employee is dissatisfied with the decision of the Executive Director. 24Regrettably, the pages of the manual on record have no indicative timelines within which an appeal ought to be determined. Transfer of staff is a sensitive mater and any appeal filed by an employee ought to be resolved expeditiously to obviate anxiety. 25Notably, the Respondent accorded the Applicant three (3) days to report to Nandi County on deployment and it is unclear to the Court what factors the Respondent considered before choosing Nandi County, including whether the Applicant would comfortably settle down in his condition. 26Although the duration served in a station is an important consideration in a transfer, it is not the only factor to be taken into consideration nor should it be determinative as employees have different needs and challenges and in particular, in circumstances such as the instant case where the Applicant cites disability. The Respondents appear to have and executes a policy of uniformity which does not take into account individual differences and circumstances that may present a case for further consideration. 27The foregoing is fortified by the fact the provisions of the Persons With Disabilities Act recognize and promote the principle of reasonable accommodation and specifically, under Section 12 of the Act which provides inter alia:-(1)…(2)Every employ shall-(a)…(b)…(c)…(d)…(e)be required to carry out appropriate modifications in their work premises to accommodate the employment of persons with disabilities. 28The Respondents availed no verifiable evidence to demonstrate that the Nandi County Office was suitable for the Applicant and had access to the assistance he may require. 29While transfer of staff involves the exercise of managerial prerogative, it ought to be done transparently, reasonably and in good faith. It ought not be secretive and employees ought to be accorded reasonable time to prepare and move to their new stations even where services are urgently needed. This is because employment encompasses other responsibilities and circumstances including family, children, school, support system and residence among others. 30Under section 3 of the Public Service Commission Act the Act, the Act applies to “all public bodies and persons holding office in the public service” and since the Respondent is a state corporation and thus a public body established under an Act of Parliament, its employees are public officers and it is therefore required to abide by the provisions of the Public Service Commission Act.Section 43 of the Act provides;1.…2.…3.In effecting a transfer the following shall be taken into account –a.the transfer shall lead to improved service delivery.b.the interest of the children, if any, of the affected public officer; andc.the transfer shall not be arbitrary. 37The foregoing provision is couched in mandatory tone and the employer is required to verifiably demonstrate that it took into consideration the three (3) factors among others in the case of a person with disability such as the instant case. 38In the Court’s view, the Respondents’ submission that the Applicant had not exhausted internal mechanisms would have been more forceful if the Respondents had availed evidence to show that its Executive Director had considered the Applicant’s appeal thereby resolving the matter or enabling the Applicant to lodge an appeal to the Respondent’s Council for a final determination. 39Nothing prevented the Executive Director from considering the Applicant’s appeal during the pendency of these proceedings for the simple reason that the appeal was filed prior to the institution of the instant application and the Applicant had accorded the Appellate process sufficient time for the Executive Director to make a determination. 40It is puzzling that the Respondent required the Applicant to report to Nandi within three (3) days yet his appeal dated on even date as the letter of deployment remained unresponded to for almost 30 days before the Applicant filed the instant application, a reminder dated 24th March notwithstanding. 41Notably, the Applicant informed the Respondent the challenges he was facing in Nandi County including his inexperience as a Field Officer. The Applicant’s letter of 24th March 2026 ought to have awakened the Respondents about the pending appeal, which remains outstanding and no explanation had been provided. 42With no response or timelines from the Respondents on the Applicant’s appeal after 26 days, even after a reminder, the Respondents cannot be heard to say that he had not exhausted internal mechanisms. The averment and submission lack persuasion. Evidently, the Respondents Notice of Preliminary Objection Lacks merit and it is accordingly dismissed. 43It cannot be over emphasized that an employer in the public or private is obligated to treat employees with dignity as ordained by article 10, of the constitution of Kenya and timeous response or feedback is part of the package. 44Flowing from the foregoing, the Court finds that the Applicant’s Chamber Summons dated 1st April 2026 has merit and leave is hereby granted to the Applicant to commence judicial review proceedings against the 1st Respondent within 14 days. 45Parties shall bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON ON THIS 25TH JUNE, 2026.DR. JACOB GAKERIJUDGEOrderIn 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 has 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.