Cattwright v Principal Secretary, State Department of Lands And Physical Planning Ministry of Lands, Public Works, Housing & Urban Development & 2 others (Petition E127 of 2023) [2023] KEELRC 3404 (KLR)
The bottom line
#Kenya's Employment Court ruled that a public officer must report to a new work station even while awaiting review of the transfer decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioner's transfer to the Ministry of Environment and Forestry and the resultant disciplinary proceedings violated his rights under Articles 41, 47 and 236 of the Constitution
- 2.Whether the Respondents violated the Petitioner's rights by failing to pay his salary, benefits and allowances from June 2022 after the transfer was rescinded
- 3.Whether the Petitioner proved any of the reliefs sought in prayers 1 to 11 of the petition
Key legal issues
#Whether the Petitioner was obliged to report to the new duty station pending his review application
Yes; under section 75(3) of the Public Service Commission Act the filing of a review does not suspend the transfer decision, and the Petitioner's failure to report constituted grounds for disciplinary hearing and could amount to desertion
The court held that the Petitioner's transfer was lawful and that even after lodging his appeal and review application, the decision remained operative. Section 75(3) of the Public Service Commission Act expressly provides that disciplinary action is not deferred or suspended pending review. The Petitioner's whereabouts from June 2022 to March 2023 were unexplained, constituting grounds for disciplinary hearing and potentially desertion of duty.
Whether the Petitioner proved violations of Articles 41, 47 and 236 of the Constitution
No; the Petitioner failed to prove any violation or discriminatory treatment
The court found that the Petitioner blatantly disobeyed lawful orders to report to his new station, did not respond to show cause notices, and failed to demonstrate that his transfer was unlawful or that he was treated differently from other redeployed officers. Having not worked between June 2022 and March 2023, he could not claim payment for that period.
Whether the Petitioner is entitled to salary for the period June 2022 to March 2023
No; payment cannot be claimed for a period not worked
The 3rd Respondent deponed that the Petitioner never reported to either the Ministry of Environment and Forestry or worked at the Ministry of Lands, and his payroll remained inactive. The court accepted that the Petitioner admitted not reporting to the new ministry from the date of transfer until rescission, so no salary, benefits or allowances were due for that period.
Legal principles established
#- A public officer who has applied for review of a transfer decision must still report to the new station pending determination, as review does not defer or suspend the decision
- Failure to report to duty pending review may amount to desertion and gross misconduct
Court orders
#- 1.The petition dated 27th June 2023 is dismissed
- 2.Each party will meet their respective costs of the petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(3)(d)(ii) of the Constitution of Kenya
Relief refused
#All declaratory orders (prayers 1-6) on violation of Articles 10, 41, 47 and 236
The Petitioner disobeyed lawful orders and did not prove violation of his rights
Orders of prohibition, permanent injunction and mandamus (prayers 7-9)
The Petitioner failed to report to his new station pending review and did not prove his rights were violated
General damages and reinstatement to payroll with accrued salary from June 2022 (prayers 9-10)
The Petitioner never worked for the period claimed
Costs
Each party will meet their respective costs of this petition
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Laws and policies are passed to be obeyed and should not be disobeyed at the whim of the people to whom they are made for. The Petition therefore is found unmeritorious and so is dismissed.
Each party will meet their respective costs of this petition.
Despite the right to apply for review conferred on a public oficer by this section, disciplinary action shall not be deferred or suspended pending the determination of the application for review
It is incumbent upon an employee even during disciplinary proceedings non-cooperation may constitute valid and fair reason to bring the relationship to an end or impose other appropriate sanctions
Where the Commission sets aside a decision under subsection (4)(b), the public oficer shall revert to the previous status held and receive the attendant benefits as though the decision set aside was never made.
Issues in the judgment
#The judgment refers to the Constitution of Kenya, 2020, which appears to be an error for the Constitution of Kenya, 2010
Inconsistent dates: the replying affidavit of the 3rd Respondent refers to a review letter of 19th December 2023 (vs 19th December 2022 elsewhere) and to a show cause letter dated 16th September 2023 in the submissions versus 16th September 2022 in the pleadings
The judgment alternatively describes the review as granted under section 77 of the Public Service Commission Regulation 2020, an error acknowledged in the affidavit, while the court analysed the rescission under section 75 of the Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cattwright v Principal Secretary, State Department of Lands And Physical Planning Ministry of Lands, Public Works, Housing & Urban Development & 2 others (Petition E127 of 2023) [2023] KEELRC 3404 (KLR)", Case Analysis (2023). Petition dated 27th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3404/eng@2023-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.