[2018] KEELRC 1315 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 646 OF 2018

JAMES MWANYIKA MWASELAH........................CLAIMANT

v

KENYA AIRPORTS AUTHORITY.....................RESPONDENT

RULING

Background

1. On or around 13 November 2017, the Respondent transferred the applicant, a Clerk of Works - Electronics to Eldoret Airport to take over the duties within the electronics section.

2. The next day, the applicant appealed against the transfer listing about 14 reasons in support of the appeal. The Respondent declined to review the transfer and it informed the applicant through a letter dated 20 December 2017. The applicant was directed to report to Eldoret by 1 January 2018.

3. On 29 January 2018, the Respondent issued a show causenotice to the applicant on grounds of desertion.

4. On the same day, the applicant sent an email to the Respondent’s General Manager, Human Resource Development stating that he had reported to Eldoret Airport on 29 January 2018 but the Airport Manager indicated that he required a release letter.

5. The applicant responded to the show cause on 31 January 2018 and a release letter was issued on 16 March 2018.

6. The applicant was not happy with the turn of events and on 20 March 2018 he caused a demand notice to be issued to the Respondent by his advocates on record.

7. There was no response, and on 2 May 2018 the applicant instituted legal proceedings against the Respondent alleging that the transfer was unlawful and contrary to the Respondent’s Transfer Policy.

8. Upon receipt of the Court process, the Respondent through its General Manager, Human Resource Development wrote to the applicant on 14 May 2018 to advise him that he had been re-designated as Technician, Electrical/Electronics, from Clerk of Works.

9. On 14 June 2018, the applicant filed the instant motion seeking orders

1. (spent)

2. THAT pending the hearing and determination of this cause, the Honourable Court be pleased to issue conservatory orders suspending the contents of the Respondent’s letter dated 14th May 2018 (Ref. No. KAA/374532) re-designating and re-deploying the Claimant from the job designation CLERK OF WORKS – ELECTRONICS as Grade S5 to job designation TECHNICIAN, ELECTRICAL/ELECTRONICS as Job Grade S5.

3. THAT the Claimant/Applicant be at liberty to pray for such further or other orders as the Honourable Court may deem fit and just to grant.

4. THAT the costs of this application be awarded to the Claimant/Applicant.

10. The Respondent filed a replying affidavit sworn by its General Manager, Human Resources Development in opposition to the application and the applicant filed a further affidavit on 9 July 2018, after securing leave.

11. The parties made submissions on 10 July 2018. The Court has given due consideration to all the material placed before it.

12. The applicant is seeking injunctive relief, and the Court will keep in mind the time tested legal principles as set out long ago in the case of Giella v Cassman Brown & Co(1973) EA 338.

Applicant’s case

13. The Applicant in seeking the orders set out above contended that in terms of section 10(5) of the Employment Act, 2007, the Respondent should have consulted with him before re-designating and/or altering his terms of service; that his skills and services were not required in Eldoret and that pursuant to section K.5 of the Transfer Policy, if at all the exigencies of service required his transfer to Eldoret, then discussions should have been initiated between him and the management, which was not done.

14. The applicant drawn the attention of the Respondent to Elizabeth Kwamboka Khaemba v BOG Cardinal Otunga High School Mosocho & 2 Ors (2014) eKLR in the demand letter. The Court has looked at the decision.

Respondent’s contentions

15. In resisting the application, the Respondent contended that the applicant’s transfer to Eldoret was prompted by the transfer of an employee who was serving in Eldoret and that the exigencies of duty required someone with the applicant’s experience and skills in Eldoret.

16. On the re-designation and re-deployment to Eldoret, the Respondent asserted that it was meant to provide the applicant with all round hands on experience.

17. It was also urged that the application was premature because the applicant had not exhausted internal mechanisms for addressing grievances such as presented by the applicant to Court.

18. Section K.5 of the Respondent’s Transfer Policy envisage discussions/consultations with an employee where the transfer is due to exigencies of service.

19. The Respondent did not respond to the applicant’s depositions that no discussions and/or consultations were held before the transfer.

20. The Respondent also did not dispute that it had re-designated the position held by the applicant.

21. In terms of section 10(5) of the Employment Act, 2007, consultations were necessary. In certain situations, such re-designation may amount to an alteration of the contract and unilateral alteration may constitute breach of contract (see James Angawa Atanda & Ors v Judicial Service Commission (2017) eKLR.

22. The Court is satisfied that the applicant has established a prima facie case for grant of an order interdicting the letter of 14 May 2018 (but not a conservatory order as the case here did not exhibit any character of a public interest/law).

23. In effect, the Court orders that

An order of injunction is hereby issued suspending, pending the hearing of the Cause herein and/or further orders of the Court, the contents of the Respondent’s letter dated 14 May 2018 (Ref. No. KAA/374532) re-designating and re-deploying the Claimant from job designation CLERK OF WORKS – ELECTRONICS Grade S5 to job designation TECHNICIAN, ELECTRICAL/ELECTRONICS Job Grade S5.

24. Costs in the Cause.

Delivered, dated and signed in Nairobi on this 27th day of July 2018.

Radido Stephen

Judge

Appearances

For applicant Mr. Arika instructed by Arika & Co. Advocates

For Respondent Ms. Kanyiri, Federation of Kenya Employers

Court Assistant Lindsey