[2024] KEELRC 13501 (KLR)

Kariuki & another v Attorney General & 2 others (Petition E166 of 2024) [2024] KEELRC 13501 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEELRC 13501 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E166 of 2024

B Ongaya, J

December 19, 2024

IN THE MATTER OF THE ALLEGED VIOLATION OF ARTICLES 1, 2, 3(1), 10, 19, 21, 22, 24, 27, 28, 41, 47, 48, 53, 54, AND 258 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE ALLEGED VIOLATION OF THE CHILDREN ACT OF 2001 AND IN THE MATTER OF THE ALLEGED VIOLATION OF THE PERSONS WITH DISABILITIES ACT, NO. 14 OF 2003 AND IN THE MATTER OF THE EMPLOYMENT AND LABOUR RELATIONS COURT ACT AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015 AND IN THE MATTER OF CONSTITUTIONAL VALIDITY OF THE 27TH SEPTEMBER 2024 COMMUNICATION PURPORTING TO TRANSFER INSPECTOR ISAAC KIRIMI KARIUKI FROM NAIROBI TO LOKITANG BY 30TH SEPTEMBER 2024 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF THE NATIONAL POLICE SERVICE COMMISSION (TRANSFER AND DEPLOYMENT REGULATIONS) OF 2015, LEGAL NOTICE NO. 89 OF 2015

Between

I.P Isaac Kirimi Kariuki

1st Petitioner

WWK (Suing as Mother & Next Friend of VM Minor )

2nd Petitioner

and

Attorney General

1st Respondent

National Police Service Commission

2nd Respondent

Directorate of Criminal Investigation

3rd Respondent

Judgment

1. The petitioners filed the petition dated 15. 10. 2024 in person and seeking the following prayers:1. A declaration that the 2nd and 3rd respondents’ transfer of the petitioner from Nairobi to Lokitang is unfair.2. A declaration that the 2nd and 3rd respondents’ transfer of the petitioner from Nairobi to Lokitang violates the rights of the petitioner’s developmentally disabled son as enshrined under Articles 53 and 54 of the Constitution of Kenya, 2010. 3.A declaration that the petitioner has been subjected to unfair working environment and labour practices contrary to the following provisions of the Constitution of Kenya, 2010: Articles 27, 28, 41 and 47. 4.A declaration that the respondents’ actions violated the Constitution of Kenya, 2010. Upon the above declaration, this Honourable Court be pleased to issue an order:a.Compelling the respondents to consider the needs of the petitioner’s developmentally disabled son when contemplating the transfer of the petitioner.b.Compelling the respondents to develop a policy that regulates the transfer of officers whose dependents are suffering from extreme forms of physical and cognitive disability.c.Compelling the respondents to pay Kshs. 500,000. 00 in specific damages because of the negative effect of the transfer on the petitioner’s developmental disability and the petitioner’s ability to complete the Bachelor of Laws degree at the University of Nairobi.d.Compelling the respondents to pay general damages to the petitioner.e.Compelling the respondents to pay costs of the suit.

2. The 1st and 2nd petitioners also filed their supporting affidavits sworn on 15. 10. 2024 and 23. 10. 2024 respectively. Their case was as follows:i.The 1st petitioner is a father to a seven (7) year old son with developmental disability and diagnosed with perinatal hypoxic ischemic brain injury in 2022. The son regularly attends a clinic program at Getrude Children’s Hospital for physical, occupational and speech therapy in conjunction with doctors from Kenyatta National Hospital (KNH). The 1st petitioner’s son also attends a special school known as Little Steps Special School where fees have been subsidized and is reliant on the 1st petitioner’s ability to give him constant psychosocial and financial support.ii.It was pursuant to the son’s medical diagnosis and advice from the neurologist that the 1st petitioner applied for a transfer from his station in DCI Hulugho in Garissa to DCI Embakassi, Nairobi so that he could access the weekly therapy sessions and attend classes at the special school facility at KNH. Following a report by officers from the DCI Clinic, the said transfer was approved in August 2022 on medical grounds.iii.When the 1st petitioner was again transferred in July 2023 to DCI Lungalunga in Mombasa, he protested the transfer on the ground that it exposed his son with a developmental disability to extreme hardship. Subsequently, the 3rd respondent diverted the said transfer from DCI Lungalunga to the Nairobi Regional Headquarters to enable the 1st petitioner provide psychosocial support to his son.iv.Though the 1st petitioner had been transferred more than three (3) times within two years, he had only objected the transfers that interrupted his son’s weekly therapy sessions and his ability to provide psychosocial support to him.v.Following a quest to pursue professional development, in January 2024, the 3rd respondent’s training committee approved the 1st petitioner’s request to undertake a Bachelor of Laws degree at the University of Nairobi (UoN). The 1st petitioner proceeded to pay Kshs.165,000. 00 in tuition fees, bought a laptop and incurred other related expenses pursuant to this approval. Further, he has been attending evening classes since August, 2024. vi.The dispute subject of this suit arose when on 27. 09. 2024, the 3rd respondent, through a memo, purported to transfer the 1st petitioner from DCI Nairobi Region Headquarters to Lokitang, a DCI station situated more than 600 Kms away from his son with developmental disability and from his own schooling at the UoN’s Parklands Campus. He was required to relocate within three (3) days to Lokitang, where there are no facilities for children suffering from cerebral palsy and would thus upend all the progress his son has achieved. Furthermore, he would not be able to access education opportunities at the UoN despite having recently been approved to pursue such education.vii.The 1st petitioner appealed the subject transfer on grounds that he and his son would be exposed to extreme hardship. However, on 14. 10. 2024, the 3rd respondent rejected his transfer and demanded that he hands over all files and exhibits to the officer in charge of investigations.viii.The 1st petitioner having exhausted all the internal avenues of dispute resolution, sought relief from the Court. Similarly, pursuant to section 22(1) of the Children Act, 2001, the 2nd petitioner has the right to apply to the High Court and seek redress on behalf of a minor (VM) where there is evidence that the provisions of sections 4 to 19 of the Children Act, 2001 have been violated.ix.The 2nd petitioner averred that more specifically, the 2nd and 3rd respondents’ exercise of their power to transfer VM’s father to Lokitang breaches VM’s rights to parental care and protection, to protection from abuse, neglect and all forms of inhuman treatment, and to basic nutrition, shelter and health care. In addition, the transfer indirectly contravenes VM’s right to be treated with dignity, his right to have access to educational facilities for disabled persons, and his right to access the materials and devices vital to him overcoming constraints arising from disability.

3. The petitioners particularized the violations of the Constitution of Kenya as hereunder:a.The 2nd and 3rd respondents implemented a policy that has the effect of exposing the 1st petitioner's son to permanent physical and cognitive disability. By transferring the 1st petitioner from Nairobi to Lokitang, the respondents violated Articles 2, 3(1), 4(2), 10, 27, 28, 41, 47, 53, 54, and 56. b.Articles 4(2) and 10 enjoin public institutions to base their policies and decisions on national values like good governance, integrity, transparency, accountability, non-discrimination, equality, inclusiveness, social justice, equity, and human dignity.c.Article 27 enshrines the petitioners’ right to equal protection before the law.d.Article 28 underscores the petitioners’ inherent dignity and the right to ensure their dignity is recognized and protected.e.Article 41 enshrines the petitioner’s right to fair labour practices.f.Article 47 recognizes the 1st petitioner’s right to administrative action that is expedient, procedurally fair, lawful, and reasonable.g.Article 53 accords every child the right to basic nutrition, basic health, and basic education and protection from neglect and parental care.h.Article 54 underscores the right of a person with disability to be treated with dignity and respect.i.Article 56 enjoins the State to create affirmative action programmes and policies designed to ensure that minorities and marginalized groups have access to healthcare services and opportunities in education.

4. The 2nd respondent filed the replying affidavit of Peter Kiptanui Leley sworn on 10. 12. 2024. It was urged as follows:i.The 2nd respondent is an independent commission established by Article 246 of the Constitution of Kenya and whose mandate includes recruiting and appointing persons to hold or act in offices in the National Police Service (NPS), confirming appointments and determining promotions and transfers within the Service, observing due process, exercising disciplinary control over and removing persons holding or acting in offices within the Service.ii.The 1st petitioner was deployed to Lokitang in line with the NPS Standing Orders chapter 72 paragraph 2, which stipulates that officers other than the Inspector General, Deputy Inspector Generals and the Director of Criminal Investigation may serve in any part of the country.iii.Incidentally, the 3rd respondent had received a complaint dated 02. 09. 2024 from a member of the public against the 1st petitioner. The complaint was in relation to Civil Case No. MCCC E3099 of 2023, Ralph Edward Nzwii Nguma vs. Amin Mulji & Azmina Mulji, and alleged that the 1st petitioner unlawfully obtained money from the complainant and tried to intimidate the complainant to withdraw the civil case filed in court. The 1st petitioner thus willfully neglected to inform this Honourable Court that he is adversely mentioned in the above-mentioned case, which is the reason the 3rd respondent decided to deploy him outside Nairobi in light of allegations of threats against a witness. Therefore, the 1st petitioner’s deployment is aimed to protect the witness and ensure the investigations into the allegations are conducted fairly, transparently and without any perception or risk of interference by the 1st petitioner.iv.In accordance with the procedures outlined in chapter 21 of the NPS Standing Orders and based on the recommendations of the Public Complaints Unit, the 3rd Respondent immediately implemented the transfer of the 1st petitioner and another officer named Anderson Miriti also implicated in the complaint that was lodged to the 3rd respondent on 12. 09. 2024. v.The petitioners’ allegation that their transfer out of Nairobi will interfere with their child’s medical needs is insufficiently substantiated. The minor’s treatment notes annexed in the petition as IK-2 dates back to 2021 and do not therefore prove whether the treatments are ongoing or reflect the child’s current medical condition.vi.Considering the 1st petitioner’s concealment of pertinent information and the petitioners’ failure to demonstrate sufficient grounds for this Court to intervene in their deployment, dismissal of this petition is warranted with costs to the respondents.

5. The 3rd respondent filed the replying affidavit of Muriuki Raaria sworn on 25. 11. 2024 through the Honourable Attorney General (the 1st respondent herein). They urged as follows:i.By the 1st petitioner executing the letter of appointment, he voluntarily abided himself to be bound by the terms of service and all laws, regulations and orders promulgated from time to time affecting their services in the Service. Pursuant to those terms, the 1st petitioner therefore accepted to be transferred to serve in any part of the republic of Kenya.ii.The 3rd respondent informed the 1st petitioner of the nature of the complaint dated 02. 12. 2024 vide summons dated 11. 09. 2024. However, when the 1st petitioner appeared before the investigating officer on 12. 09. 2024, he became uncooperative and refused to be interviewed all together.iii.This Court should take judicial notice of the provisions of Section 117 of the Penal Code in which the actions of the 1st petitioner as per the complaint made against him amount to conspiracy to defeat justice.iv.Under paragraph 18(1)(c) of Chapter 21 and paragraph 11 of chapter 30 of the NPS Standing Orders, the 3rd respondent is mandated to consider and take any immediate corrective action after receiving a complaint. In this case, the immediate corrective action was to transfer the 1st petitioner out of his station to allow for transparent investigation without his interference, as recommended by the Director Public Complaints in a preliminary report dated 13. 09. 2024. v.There is no proof provided with regard to the current medical condition of the 2nd petitioner as the treatment sheets are for the year 2021, which is three (3) years ago. Furthermore, there is neither proof indicating that the 2nd petitioner was taken to a neurologist in 2022, 2023 and 2024 as alleged and/or that the 2nd petitioner is still undergoing treatment at any other facility nor any proof that the petitioner’s son is currently undergoing weekly therapy as alleged. The petitioner is therefore using a past treatment history of his son as a scapegoat to prevent his transfer whereas his son has never been taken ill since 2021 when he was last in hospital.vi.Further, the 1st petitioner has not tendered any proof to demonstrate that his son depends on him to go to hospital and school considering the mother can take the child to hospital if need be. In any event, the practice is that should a situation arise requiring the physical presence of the 1st petitioner, nothing stops him from adhering to the laid down procedures within the NPS to seek permission to attend to that need. The 1st petitioner is simply seeking sympathy from this Court by using his child as a shield, thereby exposing the health condition of the child with exaggerated conditions not verified by any medical documentary evidence before this Court.vii.An approval for further studies is not a bar to future development, as clearly indicated in the memo dated 23. 01. 2024 on course approval and sponsorship. The work of a police officer must come first.viii.The petitioners have failed to fully demonstrate with reasonable degree, on how the provisions of the Constitution they cited were violated and the nature of such violations.

6. In response to the respondents’ replying affidavits, the 1st petitioner filed replying affidavits dated 05. 12. 2024 and 13. 12. 2024. He averred that in disregard of the orders issued by this Court on 15. 10. 2024, officers and agents of the 3rd respondent at the DCI Headquarters victimized him by removing him from the duty roster, stopped issuing him with work, and instituted disciplinary proceedings against him. Consequently, he prayed that the Court supervises the respondents’ compliance with its orders.

7. The 1st petitioner pleaded that the 2nd respondent’s (Transfer and Deployment) Regulations [Legal Notice No. 89 of 2015] provides that transfers shall not be used as a disciplinary sanction or reward measure as later learnt happened in his case. Similarly, paragraph 1 of chapter 72 of the NPS Standing Order [Legal Notice 100 of 2017] expressly prohibits the use of transfers as a disciplinary sanction. He asserted that the 3rd respondent’s agents investigated and tried him on an alleged fictitious complaint in a record of three days, and did not provide any evidence that he took a bribe and threatened witnesses. He further denied that he is adversely mentioned in Civil Case No. MCCC E3099 of 2023.

8. The 1st petitioner further averred that the 3rd respondent has failed to appreciate the difference between a disease and a disorder, as his son suffers from cerebral palsy, which is a condition and not a disease. That he has duly demonstrated through medical records and a report from Little Steps special school that his son’s ability to live a normal life is hinged on his presence and regular access to the thrice-weekly therapy sessions. That he has further proved that he has a lactating wife and the transfer to Lokitang will threaten his son’s ability to recover and live a normal life. He noted that the 2nd respondent did not deny he had been transferred more than five times and that the NPS approved his request for further studies.

9. The petitioners, 2nd respondent and the 3rd respondent filed their respective written submissions. The 1st respondent participated in the proceedings through the 3rd respondent.

10. The Court has considered the submissions made for the parties and returns as follows:a.The 1st petitioner has shown that there is no relationship of the alleged misconduct relating the civil case and the issue in dispute. In any event, the 1st petitioner has established that transfer by prevailing regulations cannot be imposed as a punitive measure.b.The 1st petitioner has indeed shown that his ongoing studies at the University of Nairobi was duly approved and upon reliance on the approval, the petitioner shifted his financial position and he is undertaking the studies as approved. It must be most whimsical and unreasonable for an employer to make such an approval and proceed to make avoidable decisions that undermine the approval granted to the worker – and the Court finds the impugned transfer in contravention of the 1st petitioners’ right to fair administrative action per section 47 of the Constitution of Kenya, 2010 and further as amounting to unfair labour practices in contravention of Article 41 of the Constitution.c.There is no doubt that the 1st petitioner’s son is a child with perinatal hypoxic ischemic brain injury leading to global developmental delays in motor skills, speech and hearing. As urged for the petitioners it is a condition characterised with severe and permanent neuropsychological sequelae, including mental retardation, visual motor or visual perceptive dysfunction, increased hyperactivity, cerebral palsy, and epilepsy. The respondents have no basis to suggest it is a temporary condition. By letter dated 14. 10. 2024 Little Steps Kids Education Centre has confirmed that the 1st petitioner’s son VM is enrolled in the school’s therapy class which takes place on Tuesday and Thursday every week and further states “ Aby assistance accorded to him will go along way in enabling him continue living a comfortable life.” The 2nd and 3rd respondents have acknowledged the son’s needs and the obligation of the 1st petitioner to attend to him. The Court finds that the petitioner has established that he carries a special parental responsibility.d.In view of the findings, the Court returns that the petitioners have established the violations as claimed in the petition.

11. The Court finds that the Court and the respondents, as well as the 1st petitioner, are all obligated to act in the best interests of the child per Article 53 of the Constitution which provides:(1)Every child has the right --(a)to a name and nationality from birth;to parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not; and,(b)to free and compulsory basic education;(c)to basic nutrition, shelter and health care;(d)to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour;(e)-(f)not to be detained, except as a measure of last resort, and when detained, to be held –(i)for the shortest appropriate period of time; and(ii)separate from adults and in conditions that take account of the child’s sex and age.(2)A child’s best interests are of paramount importance in every matter concerning the child.

12. Article 54 further on the rights of persons with disability also protects the child in the instant case. The Article states as follows:“54. (1)A person with any disability is entitled—(a)to be treated with dignity and respect and to be addressed and referred to in a manner that is not demeaning;(b)) to access educational institutions and facilities for persons with disabilities that are integrated into society to the extent compatible with the interests of the person;(c)to reasonable access to all places, public transport and information;(d)to use Sign language, Braille or other appropriate means of communication; and,(e)to access materials and devices to overcome constraints arising from the person’s disability.(2)The State shall ensure the progressive implementation of the principle that at least five percent of the members of the public in elective and appointive bodies are persons with disabilities.

13. In the instant case, it is established that the prayers made will issue in the best interest of the child.

14. While making the findings, the Court has as well considered the provisions of ILO C156 - Workers with Family Responsibilities Convention, 1981 (No. 156). The ILO C156 applies to men and women workers with responsibilities in relation to their dependent children, where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity. It provides in Article 3 provides “1. With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities. 2. For the purposes of paragraph 1 of this Article, the term discrimination means discrimination in employment and occupation as defined by Articles 1 and 5 of the Discrimination (Employment and Occupation) Convention, 1958. ”

15. Article 6 provides “The competent authorities and bodies in each country shall take appropriate measures to promote information and education which engender broader public understanding of the principle of equality of opportunity and treatment for men and women workers and of the problems of workers with family responsibilities, as well as a climate of opinion conducive to overcoming these problems.”

16. Further, Article 8 thereof is categorical thus, “Family responsibilities shall not, as such, constitute a valid reason for termination of employment.”

17. While Kenya has not ratified ILO C156, the convention offers a good guidance and is persuasive that the petitioners are entitled to the remedy that the respondents put in place policies that enable police officers with family responsibilities like the 1st petitioner to be treated fairly free from discrimination and unfair treatment. The provisions of ILO C156 are to an extent provided for in relevant constitutional and statutory provisions but need an express reinforcement through more pointed provisions in statute, human resource policies, collective bargaining agreements, and, terms and conditions of service in individual contracts. Kenya’s ratification of the ILO C156 then appears to the Court as an urgent goal.

18. The Court holds that the respondents and all employers ought to take necessary steps to ensure that men and women workers with family responsibilities are adequately protected against discrimination and unfair treatment in policy and practice. Such discrimination must be visited with adequate compensation for victims. Awareness ought be raised amongst workers and owners of work about rights of workers with family responsibilities to be in employment without discrimination or unfair treatment. The Ministry of Labour and Social Protection, employers’ organizations and workers organizations should prioritize policies, laws, practices, terms and conditions that protect the rights of working men and women with family responsibilities. The Ministry and its officers should report on statistics on workers who may be suffering such discrimination and mistreatment.

19. The Court has considered that interim orders were in place and the petitioner was protected throughout the pendency of this case and in such circumstances, compensation for violations as prayed for is declined. The costs follow event and the respondents to jointly or severally pay the petitioner’s costs of the petition.In conclusion, judgment is hereby entered for the petitioners against the respondents for:1. The declaration that the 2nd and 3rd respondents’ transfer of the petitioner from Nairobi to Lokitang is unfair.2. The declaration that the 2nd and 3rd respondents’ transfer of the petitioner from Nairobi to Lokitang violates the rights of the petitioner’s son with developmental disability as enshrined under Articles 53 and 54 of the Constitution of Kenya, 2010. 3.The declaration that the petitioner has been subjected to unfair working environment and labour practices contrary to the following provisions of the Constitution of Kenya, 2010: Articles 27, 28, 41 and 47. 4.The declaration that the respondents’ actions violated the Constitution of Kenya, 2010. 5.The order hereby issued compelling the respondents to always consider the needs of the petitioner’s son with developmental disability when contemplating the transfer of the petitioner.6. The order hereby issued compelling the respondents to develop a policy that regulates the transfer and other rights of police officers whose dependents are suffering from extreme forms of physical and cognitive disability and, other family responsibilities as envisaged in this judgment.7. The respondents to jointly or severally pay the petitioner’s expenses of the proceedings to be assessed by the Deputy Registrar.8. The petitioner to serve this judgment within 7 days upon the Cabinet Secretary responsible for labour; the Central Organisation of Trade Unions of Kenya - COTU-K; the Federation of Kenya Employers - FKE; the National Police Service Commission; the Public Service Commission; and in view of the findings in this Judgment about mainstreaming of the rights of workers with family responsibilities, for considered appropriate action, in that regard.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS THURSDAY 19THDECEMBER, 2024. BYRAM ONGAYAPRINCIPAL JUDGE