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ELRCDismissedNot stated in judgment (referenced as EOP/NMS/MEMO/VOL.11 posting)

Association of Public Health Officers (Aphok) Nairobi Branch v Director General Nairobi Metropolitan Services & 5 others; Josephine Kibaru Mbae & 4 others (Interested Parties) [2022] KEELRC 742 (KLR)

Employment and Labour Relations Court
17 February 2022
2,681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a public health officers' petition challenging deployments because the association lacked authority to sue and skipped workplace grievance procedures.

What this practically means

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Executive summary

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The Association of Public Health Officers (APHOK) Nairobi Branch and Brown Ashira Olaly petitioned the Employment and Labour Relations Court challenging transfers and deployments of over 300 Public Health Officers under the Nairobi Metropolitan Services, and the acting appointments of Margaret Sunguti and Raphael Muli as Head and Deputy Head of the Division of Environmental Health. They sought quashing orders, declarations of violation of Articles 10, 73, 75, 232 and 236 of the Constitution, and a review of the 2014 Scheme of Service. The respondents, through the Deputy Director General, contended the officers were lawfully seconded under a Deed of Transfer of Functions, that the postings were normal deployments rather than transfers, that the association lacked capacity as it was a welfare association and not a trade union, and that a further affidavit showed over 300 members disowned the petition, with the 2017 signature list allegedly fraudulently extracted. The Court found it had jurisdiction under Section 12 of the ELRC Act and Article 162(1), but held the petitioners failed to demonstrate locus standi, no authority from affected members having been filed and allegations of fraudulent extraction of the member list going unanswered. The petition also failed the Anarita Karimi precision threshold, disclosing no specific violation of any employee's rights. The appointments complaint failed as the officers served in acting capacity. Relying on Speaker of the National Assembly v James Njenga Karume, the Court held internal employment grievance mechanisms should have been the entry point. The petition was dismissed in its entirety with no order as to costs on 17th February 2022.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction to hear and determine the matter.
  2. 2.Whether the 1st petitioner has locus standi to institute this petition.
  3. 3.Whether the petitioner has demonstrated any threat and/or violation to the 1st and 2nd petitioner's rights.
  4. 4.Whether the petitioners are entitled to any reliefs.

Key legal issues

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01

Jurisdiction of the ELRC

Holding

The Court has jurisdiction over appointment and deployment of staff

Reasoning

Jurisdiction is anchored on Section 12 of the Employment and Labour Relations Court Act, 2014 and Article 162(1) of the Constitution. The issues raised concerned appointment and deployment of staff, which fall squarely within the Court's mandate, so the Court found no difficulty in entertaining the suit.

p. 4
02

Locus standi of the petitioner association

Holding

The petitioners lacked locus standi

Reasoning

No letter of authority from the alleged affected members was filed. Authority was specifically challenged in a further replying affidavit, with allegations that a 2017 signature list was fraudulently extracted, and the petitioners filed no supplementary affidavit to answer those allegations. Following Mbaru, J.'s decision in the Narok County case, the petition failed on standing.

p. 5
03

Precision in pleading constitutional violations

Holding

The petition did not meet the Anarita Karimi threshold

Reasoning

The petition failed to specify with precision how the rights of deployed employees were threatened or violated, disclosing no personal particulars of the impugned deployment. Without such specificity, the constitutional claims could not be sustained.

p. 5
04

Appointments of the 3rd and 4th interested parties

Holding

The complaint on appointments failed

Reasoning

No substantive appointments had been made; the officers held positions in acting capacity pending advertisement. The petitioners led no evidence that the officers were unqualified or that the appointments violated their rights.

p. 5
05

Exhaustion of internal dispute mechanisms

Holding

Constitutional petition was the wrong entry point

Reasoning

The public service has internal grievance-resolution mechanisms under the County Governments Act and the Public Service Act, with appeal mechanisms before court. Citing Speaker of the National Assembly v James Njenga Karume, the Court held the employment contract should have been the entry point and the Constitution should not be a thoroughfare for common grievances.

p. 5

Legal principles established

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  • Where there is a clear procedure for redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed; employment disputes should first go through internal mechanisms
  • An association must demonstrate authority from members to litigate on their behalf; certificates alone do not constitute such authority

Court orders

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  1. 1.The petition lacks merit on all facts and is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(1) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2014

Relief refused

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Order quashing the letter of 24th June 2020 appointing acting Head and Deputy Head, Division of Environmental Health

No substantive appointments; the 3rd and 4th interested parties hold positions in acting capacity and no evidence showed violation of rights

p. 5

Order quashing transfers and retaining members in their positions

Petitioners lacked locus standi and failed to demonstrate violation of rights; internal mechanisms should have been exhausted

p. 5

Declarations of constitutional violations

Necessary precision under Anarita Karimi threshold not met

p. 5

Costs

No order as to costs - 'the petition lacks merit on all facts and is dismissed with no order as to costs.'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly the petition lacks merit on all facts and is dismissed with no order as to costs.
p. 5Final orders - dismissal
the petitioners have failed to demonstrate that they have locus standi to bring this petition on behalf of the alleged grievants against their employer.
p. 5Locus standi
The Constitution should not be turned into a thoroughfare for resolution of every kind of common grievance.
p. 5Exhaustion of internal mechanisms
Such Certificates are not the authority required by the Court.
p. 4Authority to represent employees

Issues in the judgment

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minor

Incomplete drafting artifacts - typo and trailing editorial note in the judgment text

minor

Paragraph 49 contains an unresolved editorial placeholder referencing decisions not actually named

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Association of Public Health Officers (Aphok) Nairobi Branch v Director General Nairobi Metropolitan Services & 5 others; Josephine Kibaru Mbae & 4 others (Interested Parties) [2022] KEELRC 742 (KLR)", Case Analysis (2022). Not stated in judgment (referenced as EOP/NMS/MEMO/VOL.11 posting). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/742/eng@2022-02-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.