https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2399

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. E245 OF 2025** **PHILIP MALLAH PETITIONER** *VERSUS* **PUBLIC SERVICE COMMISSION 1ST RESPONDENT** **THE STATE DEPARTMENT FOR PUBLIC HEALTH AND** **PROFESSIONAL STANDARDS 2ND RESPONDENT** **JUDGMENT** The petitioner is seeking the following orders: 1. *A declaration that the redeployment letter referenced No. SDPH & PS.5/1/14 violates Article 10, 73, and 232 of the Constitution as well as the Public Service Commission Act, the Public Service Human Resource Manual and the Public Health Assistants and Public Health Officers scheme of service, thus invalid.* 2. *An order of certiorari do issue to bring into this court and quash the redeployment letter referenced No. SDPH & PS.5/1/14 for violation of Articles 10, 73, and 232 of the Constitution as well as the Public Service Commission Act, Public Service Human Resource Manual and the Public Health Assistants and Public Health Officers scheme of service.* 3. *Costs of the petition.* The petition is that the petitioner is an adult male championing for the constitutional rights of Kenyans to fair labour practices. The petition is filed in the public interest under Articles 22 and 258 of the Constitution. The 1st respondent is established under Article 233 of the Constitution. The 2nd respondent is the State Department for Public Health and Professional Standards domiciled in the Ministry of Health. The petition is that on 9 September 2025, the authorized officer of the 2nd respondent deployed staff in the State Department for Public Health and Professional Standards through deployment of staff letter No. SDPH & PS.5/1/14 that stated that the redeployment of staff had been agreed upon for immediate implementation. The application deadline for the sad deployment was 15 September 2025. The redeployment of staff was carried out contrary to the Public Service Commission Act, the public service regulations, and the public service human resource manual, and it did not take into account the seniority of serving officers. The decision taken in disregard of the criteria negates the principles of procedural fairness and constitutes an unfair labour practice; the same should be stayed. The petition is that there is evidence of extreme injustice to the detriment of directors that initially held these positions, indicating a malicious scheme orchestrated by the respondents against aggrieved persons. These acts amount to unfair labour practices and are contrary to articles 10, 41, 47, 73, and 236 of the Constitution. The petitioner filed the Supporting Affidavit and avers that following the notice dated 9 September 2025, No. SDPH & PS.5/1/14, the 2nd respondent deployed staff in the State Department for Public Health and Professional Standards and stated that the same had been agreed for immediate implementation. The application deadline was on 15 September 2025. The redeployment was carried out contrary to the Public Service Commission Act and its regulations. Junior public health officers were elevated at the detriment of senior public health officers, negatively impacting public health service delivery. The petitioner avers that he petitioned the 1st respondent, expressing his reservations regarding the deployment of staff at the State Department for Public Health and Professional Standards within the Ministry of Health. This was done under the belief that regulation B.14 of the public service human resource manual establishes that seniority of public officers should be determined by reference to the dates in which they were entered the grade, if the public officer entered that grade on the same day, by reference to the seniority, and if any public officer who entered the same grade on the same day did so by department and not by promotion. The 1st respondent exercises discretion in the deployment of officers in the public service. Still, such discretion should be within the parameters set by the Constitution, the Public Service Commission Act, and the respective schemes of service. Such procedures should be transparent and render accountability in the public service, and the orders sought should be issued. In reply, the 1st respondent filed the Replying Affidavit of Paul Famba, the Secretary/Chief Executive Officer (CEO), who avers that the petition is an abuse of court process and should be dismissed. The petitioner describes himself as a person championing the constitutional rights of Kenyans, the right to fair labour practices under Articles 22 and 258 of the Constitution, which govern litigation in the public interest. However, the facts and prayers sought to quash the 2nd respondent’s notice dated 9 September 2025, No. No. SDPH & PS.5/1/14 is not in the public interest as alleged. The petitioner contends that there is evidence of injustice to the detriment of the directors who initially held the offices affected by the deployment. Famba avers that the petition is thus brought on behalf of the directors, who are not unable to act in their own names. The said directors, if any, could be employees; it has not been demonstrated that they have authorized the petitioner to advance their case on their behalf. The petitioner thus falls within the private law realm and not in the public interest. Reliance on article 22 and 258 of the Constitution is not justified. According to the organisational structure and staff establishment for the State Department for Public Health and Professional Standards, which was approved and forwarded to the Ministry of Health for implementation through a letter dated 2 November 2025, there were only 4 positions of director heading the following directorates: 1. Public Health and Sanitation (Health Management Services, Public Health). 2. Primary Healthcare (Health Management Services, Primary Health Care). 3. Health Standards, Regulations and Quality Assurance. 4. Health Sector Coordination & Research. The officers in the challenged memo have been posted to head units rather than to directorates; therefore, the petitioner’s allegations that directors have been prejudiced lack supporting evidence. In **Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR**, the court held that the person making an allegation must give evidence to prove the fact. In this case, the deployment is a normal human resources function reserved for the authorised officer. The petitioner is seeking to micro-manage the respondents through the orders sought. There are no exceptional circumstances given for such action. In **Judicial Service Commission v Gladys Boss Shollei & another, Civil Appeal No. 50 of 2014**, the court held that courts do not intervene in employer-employee disputes, but even when they do, they must appreciate that the workplace must be allowed and enabled to operate in a manner that is productive and harmonious. Courts cannot micromanage the human resources function of other institutions, whether in the public or private sector. Famba thus avers that judicial review concerns the merits of the decision being challenged, not the decision-making process. The petitioner has not demonstrated that the respondents have acted irrationally, illegally, or with procedural impropriety to warrant the orders sought. Other than the challenged memo of the 2nd respondent, the petitioner has produced a letter from the PSC to the Ministry of Health, dated 21 August 2024, in which the PSC promoted various officers serving in the two state departments under the Ministry of Health. The petitioner relies on confidential evidence without showing in his petition how he obtained them. Without justification that he formally requested the documents and that the makers of the said confidential documents consented and furnished him with copies, the same records were obtained illegally, contrary to Articles 35 and 50 of the Constitution. Under section 80 of the Evidence Act, section 6 of the Access to Information Act and the data protection laws, the said documents should be expunged from the record. Famba avers that under Article 162(2) of the Constitution and section 12 of the Employment and Labour Relations Court Act, the court lacks the requisite jurisdiction to hear and determine this matter. The petition should be dismissed with costs. For written submissions, only the 1st respondent filed. **Determination** In the petition, the court's jurisdiction is challenged. The other issue is whether the orders sought by the petitioner should be issued. The petitioner defines himself as a human rights champion and relies on Articles 22 and 258 of the Constitution. Indeed, as submitted by the 1st respondent, the petitioner asserts that he has evidence of injustices committed by the respondents to the detriment of directors who held positions of office and were deployed to perform. He does not disclose the referenced directors save to urge a case on their behalf without authority. Drawing on the pleadings and relying on articles 22 and 258, the petition is a public-interest case. Pending the hearing of the petition, the Supreme Court in **Moi Teaching and Referral Hospital & 3 others v Gikenyi & 74 others [2026] KESC 50 (KLR)** has held that the court is without jurisdiction to hear public interest litigation filed by persons who are not employees/employers, trade union officials, employers’ federation officials, prospective employees, persons seeking employment, Cabinet Secretaries, applicants for employment, or persons aggrieved by a decision of the Director of Employment. Therefore, despite the court traditionally being the court to hear employment and labour relations disputes in terms of Article 165(5)(b) of the Constitution, the court is bound by decisions of the Supreme Court of Kenya. In this regard, the court lacks jurisdiction in the matter. However, even where the court had the requisite jurisdiction in the strict application of Articles 162(2)(a) and 165(5)(b) of the Constitution, the petitioner acts under the camouflage of undisclosed directors allegedly affected by the notice of deployment by the 2nd respondent. The petitioner cannot act under a shroud over matters that are personal and without the necessary authority from the alleged right holder. Acting in the public interest under Article 22 and 258 of the Constitution is not a panacea for illegal activities. In **Ngumo v Burn Manufacturing USA LLC [2026] KEELRC 2164 (KLR)**, the court held that illegally obtained evidence is invalid. The court should not accept such records, and they should be expunged. In **Chege v Shollei [2026] KEHC 3911 (KLR),** the court held that documents produced without the consent of a third party, such as illegally accessing and processing personal data and using it for purposes not authorized or consented to by the data subject, are invalid. It should result in a complaint to the Data Protection Commissioner. The petitioner did not attend to file any written submissions. He did not file any response to the 1st respondent's Replying Affidavit by Paul Famba. The records filed herein in support of the petitioner are personal in nature, and the petitioner did not disclose his source or obtain the consent necessary as required under Article 35 of the Constitution. The letter dated 21 August 2024, attached to the Supporting Affidavit of the petitioner as Annexure “PM2,” does not disclose the source. This letter shall be expunged from the record. The essence of the petition is the petitioner seeking to have the letter reference No. SDPH & PS.5/1/14 on the redeployment of the public health assistants and standards officers quashed. The basis is that the same violates Articles 10, 73, and 232 of the Constitution. In the letter dated 9 September 2025, the 2nd respondent redeployed various officers within the establishment. Some of the redeployments were: 1. Dr Andrew Toto from the Division of Drug Control and Substance Abuse to the Kenya Health Human Resource Advisory Council. 2. Mutie Naomi from the Division of Drug Control and Substance Abuse to Head, Division of Environmental & Sanitation. 3. Dayle Leonard from the Division of Environmental Health and Sanitation to Head, Waste Management Unit. The three above are among the seven officers redeployed. Deployments in the Public Service are provided under Section 43 of the Public Service Commission Act, read together with Section B.31 of the Human Resource Policies and Procedures Manual for the Public Service, May, 2016, which provides as follows: **…deployment of officers in their substantive capacity within a ministry will be undertaken by the respective Authorised Officer on recommendation of the Ministerial Human Resource Management Advisory Committee (MHRMAC).** On this basis, the petitioner asserts that the redeployments set out in the letter dated 9 September 2025 violate articles 10, 41, 47, 73, and 236 of the Constitution. However, under constitutional and legal mandates, the PSC is authorized to secure deployments and redeployments within the public service to ensure efficiency and productivity. The PSC has since approved a staff organisational structure and staff establishment for the State Department for Public Health and Professional Standards, which was placed with the 2nd respondent for implementation through a letter dated 2 November 2023. The 2nd respondent, in acting in accordance with the PSC letter of 2 November 2023, redeployed its officers in tandem with the PSC's constitutional and legal mandate. Seeking to quash the letter dated 9 September 2025 is to interfere with such constitutional and legal mandates without demonstration of a proper justification. Such a disruption is unnecessary in view of the respondents’ rights and prerogatives to organise human capital in the public service for optimal service delivery to the public. **Accordingly, as outlined above, the court, without jurisdiction, finds the petition without merit and is hereby dismisses. Costs to the 1st respondent.** **Delivered in open court this 14th day of August 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**