A. INTRODUCTION
1. By a Statement of Claim dated 12th September 2022, subsequently amended on 26th September 2023, the Claimant, Alphaeus Aluoch, moved this court against the 1st Respondent, Kenya Ports Authority (“the Authority” or “KPA”), and the 2nd Respondent, Daniel Ogutu, at the material time the Authority’s General Manager, Human Resource and Administration, seeking declarations that his transfer from Mombasa to Kisumu, and his subsequent transfer from Kisumu to Nairobi, were unprocedural, irregular, unlawful and discriminatory, together with an order for his return to Mombasa, a written and public apology, and substantial general, aggravated, punitive and special damages.
2. The Respondents entered appearance and filed a Response to Claim, amended on 9th August 2024, in which they denied the Claimant’s allegations in their entirety and averred that the impugned transfers were lawful exercises of the 1st Respondent’s managerial prerogative under Clause B.13 of its Human Resource Manual, 2017, informed in material part by the Claimant’s own medical history and by the operational needs of the Authority, and that no discrimination, unlawful disclosure of medical information, or other actionable wrong had been visited upon the Claimant.
3. The suit proceeded to full hearing. The Claimant testified as the sole witness in support of his case (CW1), adopting his witness statement and the pleadings and documents on record as his evidence in chief. The Respondents called one witness, Ms Liza M. Nguti, a Human Resource Officer of the 1st Respondent (RW1), who adopted her witness statement and the Respondents’ bundle of documents. The 2nd Respondent did not testify. At the close of the hearing, the parties filed and exchanged written submissions.
4. This judgment is delivered after careful evaluation of the pleadings, the evidence tendered, the documentary exhibits produced by both parties, and the rival submissions of counsel.
B. THE CLAIMANT’S CASE
5. The Claimant’s case, as pleaded and as testified to, is that he is employed by the 1st Respondent as an Assistant Superintendent (Ship), Grade HM4, C/No. 556685, on permanent and pensionable terms, earning a basic salary of Kshs. 132,240/= together with house allowance of Kshs. 42,000/=, transport allowance of Kshs. 25,000/=, administrative extraneous allowance of Kshs. 54,000/=, shift allowance of Kshs. 15,000/= and bath/berth productivity allowance of Kshs. 30,000/=, all while posted at Mombasa.
6. As early as January 2016, the Claimant had placed before the 1st Respondent a letter from Dr Rishad A.S., Consultant Physician/Nephrologist, recommending his relocation to Kisumu on account of his Supraventricular Tachycardia (“SVT”), a heart condition precipitated by stress and humidity. The Head of Medical Services forwarded the recommendation with his own comments to the Head of Human Resources, who by a letter dated 3rd February 2016 offered the Claimant a transfer to Nairobi instead, on the view that humidity levels in Mombasa and Kisumu did not materially differ and that ICD Kisumu had in any event been scaled down. The Claimant, by his letter of 4th February 2016, declined the Nairobi option and asked to remain in Mombasa; the 1st Respondent reaffirmed its position vide a letter dated 10th March 2016, and the matter rested there, the Claimant not having reapplied.
7. The Claimant’s case is that in August 2020 he became the subject of an allegation, raised by two unionisable members of staff, that he had incited workers at the Mobile Plant Section of the Container Operations Department, upon which it was proposed that he be charged with gross misconduct and interdicted with effect from 21st August 2020. An investigation was thereafter conducted by the Head of Employee Relations, culminating in an internal memorandum dated 22nd September 2020 addressed by the Head of Human Resources to the 2nd Respondent, which found the allegations against the Claimant to be “not factual… and malicious,” found the disciplinary clause relied upon inapplicable to the conduct complained of, and recommended that the proposal to charge and interdict the Claimant be rescinded.
8. It is the Claimant’s case that a mere two days later, on 24th September 2020, the 2nd Respondent personally signed and issued a letter transferring him from Container Terminal Operations Mombasa to Inland Container Depot Kisumu, on the same grade but on a supernumerary basis. The Claimant contends that this transfer was unprocedural, in that it ought to have originated from the Head of Container Terminal Operations, his own departmental head and General Manager of Operations, and not from the 2nd Respondent, the General Manager of Human Resource and Administration, and that it was, in truth, a personally motivated and vindictive act by the 2nd Respondent, who the Claimant says had harboured animus toward him since an earlier, unrelated incident in which the Claimant had criticised the handling of a colleague’s burial during the COVID-19 pandemic.
9. The Claimant reported to Kisumu as directed. While serving there he continued to travel to Nairobi for medical review and treatment, and on 24th March 2021 he was transferred a second time, from ICD Kisumu to ICD Nairobi, again without having requested it — the second transfer within less than a year.
10. As a consequence of the two transfers, the Claimant lost his bath/berth productivity allowance (Kshs. 30,000/= per month), his shift allowance (Kshs. 15,000/= per month) and, until it resumed upon his posting to Nairobi in March 2021, his extraneous allowance (Kshs. 54,000/= per month) — a combined monthly loss of Kshs. 99,000/=, cumulatively particularised at Kshs. 1,413,000/= for the period from September 2020. The Claimant contends that this occasioned him financial hardship and amounted, in substance if not in form, to an implied demotion, notwithstanding that his substantive grade of Assistant Superintendent HM4 was at all times preserved.
11. The Claimant further avers that on 28th October 2021, at a meeting attended by the Head of Inland Container Terminal, the Principal Operations Manager, shop stewards and workers on shift, the 2nd Respondent disclosed his SVT condition as the medical justification for his deployment to Nairobi, causing him embarrassment, mental anguish and, he says, loss of reputation, for which he has since sought counselling. He contends that this disclosure, coupled with the Medical Services Department’s earlier transmission of his medical information without his express consent, breached the confidentiality owed to him as a patient and infringed his constitutional rights to privacy and dignity.
12. The Claimant relies on two further medical letters — from Dr Rishad dated 31st May 2021 and from Dr Charles Mwai of Mater Misericordiae Hospital dated 7th June 2021 — both recommending, on account of his continuing SVT attacks, that he be facilitated a return to a warmer, less stressful working environment. He wrote to the Human Resource department on 15th June 2021 referencing these letters and seeking a review of his station, but was informed only that he should submit a formal request through his supervising office; no transfer back to Mombasa has since been effected.
13. After the institution of this suit, the Claimant was, on 6th February 2023, interdicted by the 1st Respondent over an allegation that he had used a digital platform to incite staff against management. During the interdiction, which lasted until it was lifted on 22nd May 2023, he was paid half salary, restricted from leaving Nairobi without permission and required to report daily. The Claimant characterises the interdiction as a retaliatory act of victimisation for having sued the Respondents, and attributes to it, cumulatively with the earlier events, his hospitalisation for depression and his eventual registration, in February 2025, as a person with disability.
14. The Claimant’s case, taken as a whole, is that the transfers, the disclosure of his medical condition and the subsequent interdiction form a single, continuous pattern of discrimination on the ground of his health status and of victimisation at the hands of the 2nd Respondent, for which the 1st and 2nd Respondents are said to be jointly and severally liable, and for which he seeks declarations that his constitutional rights under Articles 27, 28, 31 and 41 were violated and that both transfers were unprocedural, irregular, unlawful and unfair; an order returning him to Mombasa; a written and public apology; general, aggravated and punitive damages; special damages for the allowances lost; compensation under Section 49 of the Employment Act; and costs and interest.
C. THE RESPONDENT’S CASE
15. The Respondents’ case, as pleaded in the Amended Response and as testified to by RW1, is that the transfers complained of were lawful, regular, medically informed and undertaken squarely within the 1st Respondent’s managerial mandate under Clause B.13 of its Human Resource Manual, 2017, which reserves to the Authority the right to transfer an employee to another post of the same grade; that the Claimant remained throughout on his substantive grade of Assistant Superintendent HM4, on a supernumerary basis; and that he was at no point demoted.
16. RW1 explained that the Claimant’s own request in 2016 for a transfer to Kisumu on medical grounds had been considered and, in light of the then closure of ICD Kisumu, redirected toward Nairobi — an offer the Claimant himself declined in favour of remaining in Mombasa. On the Respondents’ case, this earlier history shows an employer that had already engaged, some four years before the impugned transfer, with the medical dimension of the Claimant’s circumstances, and that his eventual posting to Kisumu in September 2020, once business volumes there had recovered, cannot be treated as having come out of nowhere.
17. As to the transfer of 24th March 2021 from Kisumu to Nairobi, RW1’s evidence is that it followed a recommendation of the Head of Medical Services dated 19th March 2021, made in light of the cost implications to the Authority of the Claimant’s continued travel to Nairobi for treatment while stationed at Kisumu, and an internal memorandum of the Head of Human Resources dated 23rd March 2021, processed through the Human Resource Management Committee for ratification. On the Respondents’ case, this transfer was both medically and administratively justified.
18. RW1 denied that the 2nd Respondent bore any malice or ill intention toward the Claimant, maintained that all internal procedures were followed, and pointed out that the Claimant had at no time lodged an internal grievance with the Human Resource department over the alleged discrimination or toxic work environment of which he now complains.
19. On the allowances, RW1’s evidence was that none of the three heads claimed — berth productivity, shift and extraneous allowance — was a fixed or automatic component of the Claimant’s pay. Berth productivity allowance, she testified, is payable only to staff assigned to berth operations at Mombasa or Lamu, and ceased to apply once the Claimant left berth-based duty, his last payment having been for work done at the berth in October 2020. Shift allowance, payable under Clause F8 of the Human Resource Manual only to staff in Grades HM2 to HM4 actually rostered on a shift basis upon the recommendation of the Head of Department, was last paid for October 2020, there being no record of the Claimant thereafter working a rostered shift or of any such recommendation. Extraneous allowance, payable under Clause F7 to management staff who file returns of extra hours worked, was not claimed on any returns filed by the Claimant for the period in issue. RW1 maintained that the cessation of these allowances upon transfer did not, in law, constitute a loss of income or a demotion, the Claimant’s grade and basic salary having remained unaltered throughout.
20. On the alleged disclosure of the Claimant’s medical condition, RW1 denied that any meeting of the kind alleged took place on 28th October 2021, and put the Claimant to strict proof of the allegation. She explained that medical recommendations concerning an employee are received by the Head of Medical Services and conveyed internally to the General Manager, Human Resource and Administration, solely for the purpose of informing deployment decisions, and denied that any such information had been shared with unauthorised third parties.
21. RW1 further testified that, following a separate allegation in early 2023 that the Claimant had used a digital platform to incite staff against management, the Ag. Managing Director interdicted him on 6th February 2023; that the Claimant responded on 8th February 2023; and that the matter was thereafter resolved administratively. She confirmed that the 2nd Respondent has, since a Board resolution of 10th March 2023, been redeployed to Shimoni and no longer holds the office of General Manager, Human Resource and Administration.
22. In their written submissions, the Respondents contend, as a matter of law, that the transfer, deployment and redeployment of staff are quintessentially matters of managerial prerogative with which courts are reluctant to interfere save on proof of malice, illegality or excess of jurisdiction; that a claimant alleging discrimination bears an initial evidential burden of establishing a prima facie case, including identification of a comparator, before the burden shifts to the employer under Section 5(7) of the Employment Act, 2007; that allowances tied to station, duty or specific authorisation are not automatic entitlements and must be specifically pleaded and strictly proved as special damages; that the claim of unlawful disclosure is unsupported by any witness or documentary corroboration of the alleged meeting; that the interdiction of February 2023 did not result in dismissal and cannot found a claim analogous to unfair termination; and that no personal liability can attach to the 2nd Respondent, who at all times acted within the administrative structures of his employer, it being trite that claims of this nature properly lie against the employer.
D. ISSUES FOR DETERMINATION
23. Arising from the pleadings, the evidence and the parties’ rival submissions, this court considers the following issues to fall for determination:
i. Whether the Claimant’s transfer from Mombasa to Kisumu in September 2020, and his subsequent transfer from Kisumu to Nairobi in March 2021, were lawful exercises of the 1st Respondent’s managerial prerogative, or were vitiated by bad faith, arbitrariness or illegality;
ii. Whether the Respondents discriminated against the Claimant contrary to Article 27 of the Constitution and Section 5 of the Employment Act, 2007;
iii. Whether the cessation of the Claimant’s shift, berth productivity and extraneous allowances upon his transfer constituted a loss of income or an implied demotion;
iv. Whether the Respondents unlawfully disclosed the Claimant’s medical condition in breach of his right to privacy and dignity, and whether he thereby suffered loss of reputation;
v. Whether the 2nd Respondent was properly enjoined as a party to this suit;
vi. Whether the interdiction of February 2023 gives rise to a sustainable claim for damages or other relief;
vii. Whether the Claimant is entitled to the reliefs sought, or any of them; and
viii. Who shall bear the costs of the suit.
E. ANALYSIS AND DETERMINATION
The 1st Respondent’s Prerogative to Transfer, Deploy and Redeploy Its Staff
24. It is well settled, and this court accepts, that the transfer, deployment, redesignation and redeployment of staff are ordinarily matters falling within an employer’s managerial prerogative, and that a court will be slow to interfere with the exercise of that prerogative unless it is shown that the employer acted maliciously, contrary to law, or in excess of its jurisdiction. This is the consistent thread running through Moses Kirui Toroitich v County Secretary, County Government of Baringo & Another (Judicial Review No. E003 of 2021), Henry Ochido v NGO Co-ordination Board [2015] KEELRC 150 (KLR), and Kirigha v Kenya Revenue Authority (Cause E114 of 2024) [2025] KEELRC 2414 (KLR), and it applies with particular force to the 1st Respondent, whose own Human Resource Manual, 2017, at Clause B.13, expressly reserves to it the right to transfer an employee to another post of the same grade to meet its operational needs.
25. That prerogative is not, however, unconfined. As was observed in Henry Ochido, an employer enjoying this prerogative is nonetheless under a duty not to act arbitrarily, to accord the employee sufficient and reasonable notice, and to have regard to any variation the employee may reasonably seek. And as this court itself observed in Kirigha v Kenya Revenue Authority, where the material placed before a court by an employer is, on its own terms, self-defeating of the operational justification advanced for a transfer, the employee will be found to have raised a case meriting the court’s intervention. The question in every case is therefore not whether the employer possessed the power to transfer — the 1st Respondent plainly did — but whether, on the particular facts, that power was exercised reasonably and in good faith, or was instead turned to an extraneous, arbitrary or retaliatory purpose.
The Transfer of 24th September 2020: An Arbitrary Exercise of Prerogative
26. This court must dwell at some length on the transfer of 24th September 2020, for it is here that the Claimant’s case finds its firmest documentary footing. The internal memorandum of 22nd September 2020, addressed by the 1st Respondent’s own Head of Human Resources to the 2nd Respondent, records in unambiguous terms the outcome of an investigation conducted by the Head of Employee Relations into the allegation that the Claimant had incited staff at the Mobile Plant Section: that the two unionisable staff who levelled the allegation were themselves acting unprocedurally in purporting to charge a management officer; that the disciplinary clause originally invoked, Section K.1(c)(iv) of the Human Resource Manual, did not in any event relate to the conduct alleged; that one of the two accusers had failed, despite repeated attempts, to honour the investigator’s invitation for interview; that the audio recording relied upon to ground the allegation had been made without the Claimant’s knowledge, in violation of his constitutional rights; and that, in the result, “the allegations against Mr Alouch are not factual based on the investigative report and are malicious.” The memorandum concluded by recommending that the earlier proposal that the Claimant be charged under Section K.1(c)(iv) and interdicted be rescinded, and that he be reinstated to his substantive duties.
27. This document is not a stray or contested exhibit produced from an uncertain source. It forms part of the Respondents’ own bundle of documents, tendered by the 1st Respondent in support of its own case, and its authenticity and contents were at no stage disputed. Yet a mere two days after that exoneration, on 24th September 2020, it was the 2nd Respondent himself, the very officer to whom the exculpatory memorandum had been addressed, who personally signed the letter transferring the Claimant from Mombasa to Kisumu. Nothing on the face of either document — not the memorandum of 22nd September 2020, and not the transfer letter of 24th September 2020 — makes the slightest reference to the Claimant’s health, his 2016 medical correspondence, or any operational need for his services at Kisumu. Indeed, RW1’s witness statement, filed on behalf of the 1st Respondent, is itself conspicuously silent on this entire episode: it moves directly from the correspondence of 2016 to the transfer letter of 24th September 2020 without so much as acknowledging the intervening disciplinary investigation, its finding of malice on the part of the Claimant’s accusers, or its recommendation of rescission. Neither in that witness statement nor in the Respondents’ submissions is any explanation whatsoever offered for the abrupt reversal, within forty-eight hours, from a formal finding that the case against the Claimant was baseless to his relocation, on the initiative of the very officer under whose authority that case had just collapsed, to a station several hundred kilometres from his home and family.
28. A court is entitled, indeed obliged, to draw the inference that the facts most readily support. Here, the inference is inescapable: the transfer of 24th September 2020 was not, in its true motivation, an exercise of the 1st Respondent’s prerogative to meet its operational needs, still less an accommodation of the Claimant’s medical circumstances — a rationale advanced only retrospectively, and nowhere reflected in the contemporaneous record. It was, on the balance of probabilities, a punitive sequel to a disciplinary process that had just been declared malicious, effected by the very officer whose authority over that process had just been repudiated by his own Head of Human Resources. This is not necessarily to find the transfer void for want of procedure in the narrow sense pleaded by the Claimant — it issued, after all, from the proper Human Resource office, on proper letterhead, preserving the Claimant’s substantive grade. It is, rather, to find that the power to transfer, though lawfully vested in the 2nd Respondent’s office, was on this occasion exercised arbitrarily and in bad faith, for a purpose extraneous to any legitimate operational or medical consideration. That is precisely the species of conduct against which the qualification to the managerial prerogative, recognised in Ochido and in Kirigha, is directed, and it amounts to an unfair labour practice within the meaning of Article 41 of the Constitution.
The Transfer of 24th March 2021: A Bona Fide Exercise of Prerogative
29. The transfer of 24th March 2021, from Kisumu to Nairobi, stands on an altogether different footing. It was preceded by a recommendation of the Head of Medical Services dated 19th March 2021, itself prompted by the Claimant’s own repeated travel to Nairobi for cardiac review while stationed at Kisumu, and was processed through an internal memorandum of the Head of Human Resources dated 23rd March 2021 for ratification by the Human Resource Management Committee, before being communicated by letter signed on behalf of the Head of Human Resources — not, this time, by the 2nd Respondent personally. There is no antecedent disciplinary process, no finding of malice, and no unexplained reversal of fortune of the kind that taints the September 2020 transfer. The Claimant’s own correspondence of 2016, in which the 1st Respondent had already once engaged, however imperfectly, with his medical circumstances by offering him a station it considered more suitable, further undermines any suggestion that the Authority was, as a matter of general practice, indifferent or hostile to his health. This court is not satisfied that the transfer of 24th March 2021 was actuated by malice, illegality or arbitrariness, and declines to disturb it.
Discrimination: Has the Claimant Discharged the Evidential Burden?
30. Article 27(4) and (5) of the Constitution prohibit direct or indirect discrimination on a number of specified grounds, including health status, and Section 5(3) of the Employment Act, 2007 gives that prohibition statutory expression in the employment sphere. Section 5(7) of the Act places on an employer the burden of proving that discrimination did not take place “as alleged,” but that burden is not engaged by the bare assertion of discrimination; the employee must first lay before the court substantial material establishing a prima facie case of discriminatory treatment before the evidential burden shifts. This is the approach this court takes from Kendi v Safaricom Sacco Limited (Employment and Labour Relations Appeal E259 of 2023) [2025], where it was held that a claimant bears “the overriding obligation to lay substantial material before the… court, in discharge of the evidential burden establishing their treatment… as discriminatory,” and that only once that threshold is crossed does the burden pass to the respondent.
31. Measured against that threshold, the Claimant’s discrimination claim cannot succeed. He has identified no comparator — no evidence was led of any other officer, similarly graded and similarly circumstanced, whether or not sharing the Claimant’s health profile, who was treated more favourably in matters of posting or deployment. Nor has he shown a pattern of differential treatment traceable to his health status as such. This court has, in the preceding paragraphs, found the transfer of 24th September 2020 to have been arbitrary and made in bad faith; but arbitrariness and discrimination, though they may on occasion coincide, are not synonymous, and proof of the one does not, without more, establish the other. The former looks to whether the employer’s motive was extraneous, malicious or unfair; the latter requires proof that the employee was treated less favourably than others because of a listed or analogous ground. The documentary record traces the animus behind the September 2020 transfer squarely to the Mobile Plant Section incident and its disciplinary aftermath — not to the Claimant’s heart condition, which is nowhere mentioned in either the memorandum of 22nd September 2020 or the transfer letter that followed it. The transfer of March 2021, by contrast, was expressly and traceably grounded in medical considerations, and operated, if anything, to accommodate rather than penalise the Claimant’s health needs. In these circumstances, the Claimant has not laid the prima facie foundation necessary to shift the evidential burden under Section 5(7) of the Act, and this limb of his claim must fail, without prejudice to the distinct finding of unfair labour practice already made above.
Allowances: Station- and Duty-Contingent Emoluments, Not a Fixed Item of Pay
32. Section 17 of the Employment Act, 2007 recognises that wages and allowances are payable in accordance with the contract and the terms governing the particular benefit in question. Allowances, depending on their nature, can be attracted by the station to which an employee happens to be attached; others may be a fixed and portable item on an employee’s payslip, following the employee wherever he is posted. The evidence in this cause places the shift, berth productivity and extraneous allowances squarely in the former category. Berth productivity allowance, on the 1st Respondent’s uncontroverted evidence, was payable only to staff assigned to berth operations at Mombasa or Lamu, under a circular on the Berth Productivity Incentive Scheme dated 22nd September 2017; it necessarily ceased to apply once the Claimant left berth-based duty. Shift allowance, under Clause F8 of the Human Resource Manual, is payable only to staff in Grades HM2 to HM4 who are in fact rostered on a shift basis, upon the recommendation of the Head of Department; no such rostering or recommendation was shown for the Claimant after his transfer. Extraneous allowance, under Clause F7, is payable to management staff who file returns evidencing hours worked beyond the ordinary; the Claimant filed none for the period he now claims.
33. Where an allowance is, by its own governing terms, contingent upon the particular station, duty or shift pattern to which an employee is for the time being assigned, it is liable to be a moving target as that employee is transferred from one station to another, rising, falling or disappearing altogether as circumstances change. Such an allowance cannot be equated with the fixed items on an employee’s payslip — basic salary, house allowance and the like — which travel with the employee regardless of station. In such a situation, the cessation of a station- or duty-contingent allowance upon a transfer cannot, without more, be treated as a claim for loss of income, nor can it found an assertion that the employee has been demoted. This is all the more so here, where it is common ground that the Claimant retained his substantive grade of Assistant Superintendent HM4 throughout both transfers, his supernumerary status notwithstanding. The prayers for general and special damages founded on the loss of these allowances accordingly fail for want of both evidential and legal foundation, and this is without prejudice to the distinct and narrower remedy this court affords below in respect of the arbitrary manner in which the September 2020 transfer was itself effected.
The Alleged Disclosure of the Claimant’s Medical Condition
34. The right to privacy guaranteed by Article 31 of the Constitution, and the confidentiality of health information required by Section 11 of the Health Act, 2017, are not in question, and a proven breach of either would attract this court’s intervention. The difficulty for the Claimant is one of proof. The allegation that the 2nd Respondent disclosed his SVT condition at a meeting on 28th October 2021, before the Head of Inland Container Terminal, the Principal Operations Manager, shop stewards and workers on shift, is a serious one, and its seriousness demanded correspondingly cogent evidence. None of the numerous persons said to have been present at that meeting was called to testify. No minutes, incident report or contemporaneous complaint of the alleged disclosure was produced. No particulars were given of the precise words used, the manner of their utterance, or the specific reaction they are said to have provoked among those present, beyond the Claimant’s own general assertion that his condition was cited “as medical grounds for his deployment to Nairobi” — an account that, without more, is equally consistent with an internal,
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1. By a Statement of Claim dated 12th September 2022, subsequently amended on 26th September 2023, the Claimant, Alphaeus Aluoch, moved this court against the 1st Respondent, Kenya Ports Authority (“the Authority” or “KPA”), and the 2nd Respondent, Daniel Ogutu, at the material time the Authority’s General Manager, Human Resource and Administration, seeking declarations that his transfer from Mombasa to Kisumu, and his subsequent transfer from Kisumu to Nairobi, were unprocedural, irregular, unlawful and discriminatory, together with an order for his return to Mombasa, a written and public apology, and substantial general, aggravated, punitive and special damages.
2. The Respondents entered appearance and filed a Response to Claim, amended on 9th August 2024, in which they denied the Claimant’s allegations in their entirety and averred that the impugned transfers were lawful exercises of the 1st Respondent’s managerial prerogative under Clause B.13 of its Human Resource Manual, 2017, informed in material part by the Claimant’s own medical history and by the operational needs of the Authority, and that no discrimination, unlawful disclosure of medical information, or other actionable wrong had been visited upon the Claimant.
3. The suit proceeded to full hearing. The Claimant testified as the sole witness in support of his case (CW1), adopting his witness statement and the pleadings and documents on record as his evidence in chief. The Respondents called one witness, Ms Liza M. Nguti, a Human Resource Officer of the 1st Respondent (RW1), who adopted her witness statement and the Respondents’ bundle of documents. The 2nd Respondent did not testify. At the close of the hearing, the parties filed and exchanged written submissions.
4. This judgment is delivered after careful evaluation of the pleadings, the evidence tendered, the documentary exhibits produced by both parties, and the rival submissions of counsel.
B. THE CLAIMANT’S CASE
5. The Claimant’s case, as pleaded and as testified to, is that he is employed by the 1st Respondent as an Assistant Superintendent (Ship), Grade HM4, C/No. 556685, on permanent and pensionable terms, earning a basic salary of Kshs. 132,240/= together with house allowance of Kshs. 42,000/=, transport allowance of Kshs. 25,000/=, administrative extraneous allowance of Kshs. 54,000/=, shift allowance of Kshs. 15,000/= and bath/berth productivity allowance of Kshs. 30,000/=, all while posted at Mombasa.
6. As early as January 2016, the Claimant had placed before the 1st Respondent a letter from Dr Rishad A.S., Consultant Physician/Nephrologist, recommending his relocation to Kisumu on account of his Supraventricular Tachycardia (“SVT”), a heart condition precipitated by stress and humidity. The Head of Medical Services forwarded the recommendation with his own comments to the Head of Human Resources, who by a letter dated 3rd February 2016 offered the Claimant a transfer to Nairobi instead, on the view that humidity levels in Mombasa and Kisumu did not materially differ and that ICD Kisumu had in any event been scaled down. The Claimant, by his letter of 4th February 2016, declined the Nairobi option and asked to remain in Mombasa; the 1st Respondent reaffirmed its position vide a letter dated 10th March 2016, and the matter rested there, the Claimant not having reapplied.
7. The Claimant’s case is that in August 2020 he became the subject of an allegation, raised by two unionisable members of staff, that he had incited workers at the Mobile Plant Section of the Container Operations Department, upon which it was proposed that he be charged with gross misconduct and interdicted with effect from 21st August 2020. An investigation was thereafter conducted by the Head of Employee Relations, culminating in an internal memorandum dated 22nd September 2020 addressed by the Head of Human Resources to the 2nd Respondent, which found the allegations against the Claimant to be “not factual… and malicious,” found the disciplinary clause relied upon inapplicable to the conduct complained of, and recommended that the proposal to charge and interdict the Claimant be rescinded.
8. It is the Claimant’s case that a mere two days later, on 24th September 2020, the 2nd Respondent personally signed and issued a letter transferring him from Container Terminal Operations Mombasa to Inland Container Depot Kisumu, on the same grade but on a supernumerary basis. The Claimant contends that this transfer was unprocedural, in that it ought to have originated from the Head of Container Terminal Operations, his own departmental head and General Manager of Operations, and not from the 2nd Respondent, the General Manager of Human Resource and Administration, and that it was, in truth, a personally motivated and vindictive act by the 2nd Respondent, who the Claimant says had harboured animus toward him since an earlier, unrelated incident in which the Claimant had criticised the handling of a colleague’s burial during the COVID-19 pandemic.
9. The Claimant reported to Kisumu as directed. While serving there he continued to travel to Nairobi for medical review and treatment, and on 24th March 2021 he was transferred a second time, from ICD Kisumu to ICD Nairobi, again without having requested it — the second transfer within less than a year.
10. As a consequence of the two transfers, the Claimant lost his bath/berth productivity allowance (Kshs. 30,000/= per month), his shift allowance (Kshs. 15,000/= per month) and, until it resumed upon his posting to Nairobi in March 2021, his extraneous allowance (Kshs. 54,000/= per month) — a combined monthly loss of Kshs. 99,000/=, cumulatively particularised at Kshs. 1,413,000/= for the period from September 2020. The Claimant contends that this occasioned him financial hardship and amounted, in substance if not in form, to an implied demotion, notwithstanding that his substantive grade of Assistant Superintendent HM4 was at all times preserved.
11. The Claimant further avers that on 28th October 2021, at a meeting attended by the Head of Inland Container Terminal, the Principal Operations Manager, shop stewards and workers on shift, the 2nd Respondent disclosed his SVT condition as the medical justification for his deployment to Nairobi, causing him embarrassment, mental anguish and, he says, loss of reputation, for which he has since sought counselling. He contends that this disclosure, coupled with the Medical Services Department’s earlier transmission of his medical information without his express consent, breached the confidentiality owed to him as a patient and infringed his constitutional rights to privacy and dignity.
12. The Claimant relies on two further medical letters — from Dr Rishad dated 31st May 2021 and from Dr Charles Mwai of Mater Misericordiae Hospital dated 7th June 2021 — both recommending, on account of his continuing SVT attacks, that he be facilitated a return to a warmer, less stressful working environment. He wrote to the Human Resource department on 15th June 2021 referencing these letters and seeking a review of his station, but was informed only that he should submit a formal request through his supervising office; no transfer back to Mombasa has since been effected.
13. After the institution of this suit, the Claimant was, on 6th February 2023, interdicted by the 1st Respondent over an allegation that he had used a digital platform to incite staff against management. During the interdiction, which lasted until it was lifted on 22nd May 2023, he was paid half salary, restricted from leaving Nairobi without permission and required to report daily. The Claimant characterises the interdiction as a retaliatory act of victimisation for having sued the Respondents, and attributes to it, cumulatively with the earlier events, his hospitalisation for depression and his eventual registration, in February 2025, as a person with disability.
14. The Claimant’s case, taken as a whole, is that the transfers, the disclosure of his medical condition and the subsequent interdiction form a single, continuous pattern of discrimination on the ground of his health status and of victimisation at the hands of the 2nd Respondent, for which the 1st and 2nd Respondents are said to be jointly and severally liable, and for which he seeks declarations that his constitutional rights under Articles 27, 28, 31 and 41 were violated and that both transfers were unprocedural, irregular, unlawful and unfair; an order returning him to Mombasa; a written and public apology; general, aggravated and punitive damages; special damages for the allowances lost; compensation under Section 49 of the Employment Act; and costs and interest.
C. THE RESPONDENT’S CASE
15. The Respondents’ case, as pleaded in the Amended Response and as testified to by RW1, is that the transfers complained of were lawful, regular, medically informed and undertaken squarely within the 1st Respondent’s managerial mandate under Clause B.13 of its Human Resource Manual, 2017, which reserves to the Authority the right to transfer an employee to another post of the same grade; that the Claimant remained throughout on his substantive grade of Assistant Superintendent HM4, on a supernumerary basis; and that he was at no point demoted.
16. RW1 explained that the Claimant’s own request in 2016 for a transfer to Kisumu on medical grounds had been considered and, in light of the then closure of ICD Kisumu, redirected toward Nairobi — an offer the Claimant himself declined in favour of remaining in Mombasa. On the Respondents’ case, this earlier history shows an employer that had already engaged, some four years before the impugned transfer, with the medical dimension of the Claimant’s circumstances, and that his eventual posting to Kisumu in September 2020, once business volumes there had recovered, cannot be treated as having come out of nowhere.
17. As to the transfer of 24th March 2021 from Kisumu to Nairobi, RW1’s evidence is that it followed a recommendation of the Head of Medical Services dated 19th March 2021, made in light of the cost implications to the Authority of the Claimant’s continued travel to Nairobi for treatment while stationed at Kisumu, and an internal memorandum of the Head of Human Resources dated 23rd March 2021, processed through the Human Resource Management Committee for ratification. On the Respondents’ case, this transfer was both medically and administratively justified.
18. RW1 denied that the 2nd Respondent bore any malice or ill intention toward the Claimant, maintained that all internal procedures were followed, and pointed out that the Claimant had at no time lodged an internal grievance with the Human Resource department over the alleged discrimination or toxic work environment of which he now complains.
19. On the allowances, RW1’s evidence was that none of the three heads claimed — berth productivity, shift and extraneous allowance — was a fixed or automatic component of the Claimant’s pay. Berth productivity allowance, she testified, is payable only to staff assigned to berth operations at Mombasa or Lamu, and ceased to apply once the Claimant left berth-based duty, his last payment having been for work done at the berth in October 2020. Shift allowance, payable under Clause F8 of the Human Resource Manual only to staff in Grades HM2 to HM4 actually rostered on a shift basis upon the recommendation of the Head of Department, was last paid for October 2020, there being no record of the Claimant thereafter working a rostered shift or of any such recommendation. Extraneous allowance, payable under Clause F7 to management staff who file returns of extra hours worked, was not claimed on any returns filed by the Claimant for the period in issue. RW1 maintained that the cessation of these allowances upon transfer did not, in law, constitute a loss of income or a demotion, the Claimant’s grade and basic salary having remained unaltered throughout.
20. On the alleged disclosure of the Claimant’s medical condition, RW1 denied that any meeting of the kind alleged took place on 28th October 2021, and put the Claimant to strict proof of the allegation. She explained that medical recommendations concerning an employee are received by the Head of Medical Services and conveyed internally to the General Manager, Human Resource and Administration, solely for the purpose of informing deployment decisions, and denied that any such information had been shared with unauthorised third parties.
21. RW1 further testified that, following a separate allegation in early 2023 that the Claimant had used a digital platform to incite staff against management, the Ag. Managing Director interdicted him on 6th February 2023; that the Claimant responded on 8th February 2023; and that the matter was thereafter resolved administratively. She confirmed that the 2nd Respondent has, since a Board resolution of 10th March 2023, been redeployed to Shimoni and no longer holds the office of General Manager, Human Resource and Administration.
22. In their written submissions, the Respondents contend, as a matter of law, that the transfer, deployment and redeployment of staff are quintessentially matters of managerial prerogative with which courts are reluctant to interfere save on proof of malice, illegality or excess of jurisdiction; that a claimant alleging discrimination bears an initial evidential burden of establishing a prima facie case, including identification of a comparator, before the burden shifts to the employer under Section 5(7) of the Employment Act, 2007; that allowances tied to station, duty or specific authorisation are not automatic entitlements and must be specifically pleaded and strictly proved as special damages; that the claim of unlawful disclosure is unsupported by any witness or documentary corroboration of the alleged meeting; that the interdiction of February 2023 did not result in dismissal and cannot found a claim analogous to unfair termination; and that no personal liability can attach to the 2nd Respondent, who at all times acted within the administrative structures of his employer, it being trite that claims of this nature properly lie against the employer.
D. ISSUES FOR DETERMINATION
23. Arising from the pleadings, the evidence and the parties’ rival submissions, this court considers the following issues to fall for determination:
i. Whether the Claimant’s transfer from Mombasa to Kisumu in September 2020, and his subsequent transfer from Kisumu to Nairobi in March 2021, were lawful exercises of the 1st Respondent’s managerial prerogative, or were vitiated by bad faith, arbitrariness or illegality;
ii. Whether the Respondents discriminated against the Claimant contrary to Article 27 of the Constitution and Section 5 of the Employment Act, 2007;
iii. Whether the cessation of the Claimant’s shift, berth productivity and extraneous allowances upon his transfer constituted a loss of income or an implied demotion;
iv. Whether the Respondents unlawfully disclosed the Claimant’s medical condition in breach of his right to privacy and dignity, and whether he thereby suffered loss of reputation;
v. Whether the 2nd Respondent was properly enjoined as a party to this suit;
vi. Whether the interdiction of February 2023 gives rise to a sustainable claim for damages or other relief;
vii. Whether the Claimant is entitled to the reliefs sought, or any of them; and
viii. Who shall bear the costs of the suit.
E. ANALYSIS AND DETERMINATION
The 1st Respondent’s Prerogative to Transfer, Deploy and Redeploy Its Staff
24. It is well settled, and this court accepts, that the transfer, deployment, redesignation and redeployment of staff are ordinarily matters falling within an employer’s managerial prerogative, and that a court will be slow to interfere with the exercise of that prerogative unless it is shown that the employer acted maliciously, contrary to law, or in excess of its jurisdiction. This is the consistent thread running through Moses Kirui Toroitich v County Secretary, County Government of Baringo & Another (Judicial Review No. E003 of 2021), Henry Ochido v NGO Co-ordination Board [2015] KEELRC 150 (KLR), and Kirigha v Kenya Revenue Authority (Cause E114 of 2024) [2025] KEELRC 2414 (KLR), and it applies with particular force to the 1st Respondent, whose own Human Resource Manual, 2017, at Clause B.13, expressly reserves to it the right to transfer an employee to another post of the same grade to meet its operational needs.
25. That prerogative is not, however, unconfined. As was observed in Henry Ochido, an employer enjoying this prerogative is nonetheless under a duty not to act arbitrarily, to accord the employee sufficient and reasonable notice, and to have regard to any variation the employee may reasonably seek. And as this court itself observed in Kirigha v Kenya Revenue Authority, where the material placed before a court by an employer is, on its own terms, self-defeating of the operational justification advanced for a transfer, the employee will be found to have raised a case meriting the court’s intervention. The question in every case is therefore not whether the employer possessed the power to transfer — the 1st Respondent plainly did — but whether, on the particular facts, that power was exercised reasonably and in good faith, or was instead turned to an extraneous, arbitrary or retaliatory purpose.
The Transfer of 24th September 2020: An Arbitrary Exercise of Prerogative
26. This court must dwell at some length on the transfer of 24th September 2020, for it is here that the Claimant’s case finds its firmest documentary footing. The internal memorandum of 22nd September 2020, addressed by the 1st Respondent’s own Head of Human Resources to the 2nd Respondent, records in unambiguous terms the outcome of an investigation conducted by the Head of Employee Relations into the allegation that the Claimant had incited staff at the Mobile Plant Section: that the two unionisable staff who levelled the allegation were themselves acting unprocedurally in purporting to charge a management officer; that the disciplinary clause originally invoked, Section K.1(c)(iv) of the Human Resource Manual, did not in any event relate to the conduct alleged; that one of the two accusers had failed, despite repeated attempts, to honour the investigator’s invitation for interview; that the audio recording relied upon to ground the allegation had been made without the Claimant’s knowledge, in violation of his constitutional rights; and that, in the result, “the allegations against Mr Alouch are not factual based on the investigative report and are malicious.” The memorandum concluded by recommending that the earlier proposal that the Claimant be charged under Section K.1(c)(iv) and interdicted be rescinded, and that he be reinstated to his substantive duties.
27. This document is not a stray or contested exhibit produced from an uncertain source. It forms part of the Respondents’ own bundle of documents, tendered by the 1st Respondent in support of its own case, and its authenticity and contents were at no stage disputed. Yet a mere two days after that exoneration, on 24th September 2020, it was the 2nd Respondent himself, the very officer to whom the exculpatory memorandum had been addressed, who personally signed the letter transferring the Claimant from Mombasa to Kisumu. Nothing on the face of either document — not the memorandum of 22nd September 2020, and not the transfer letter of 24th September 2020 — makes the slightest reference to the Claimant’s health, his 2016 medical correspondence, or any operational need for his services at Kisumu. Indeed, RW1’s witness statement, filed on behalf of the 1st Respondent, is itself conspicuously silent on this entire episode: it moves directly from the correspondence of 2016 to the transfer letter of 24th September 2020 without so much as acknowledging the intervening disciplinary investigation, its finding of malice on the part of the Claimant’s accusers, or its recommendation of rescission. Neither in that witness statement nor in the Respondents’ submissions is any explanation whatsoever offered for the abrupt reversal, within forty-eight hours, from a formal finding that the case against the Claimant was baseless to his relocation, on the initiative of the very officer under whose authority that case had just collapsed, to a station several hundred kilometres from his home and family.
28. A court is entitled, indeed obliged, to draw the inference that the facts most readily support. Here, the inference is inescapable: the transfer of 24th September 2020 was not, in its true motivation, an exercise of the 1st Respondent’s prerogative to meet its operational needs, still less an accommodation of the Claimant’s medical circumstances — a rationale advanced only retrospectively, and nowhere reflected in the contemporaneous record. It was, on the balance of probabilities, a punitive sequel to a disciplinary process that had just been declared malicious, effected by the very officer whose authority over that process had just been repudiated by his own Head of Human Resources. This is not necessarily to find the transfer void for want of procedure in the narrow sense pleaded by the Claimant — it issued, after all, from the proper Human Resource office, on proper letterhead, preserving the Claimant’s substantive grade. It is, rather, to find that the power to transfer, though lawfully vested in the 2nd Respondent’s office, was on this occasion exercised arbitrarily and in bad faith, for a purpose extraneous to any legitimate operational or medical consideration. That is precisely the species of conduct against which the qualification to the managerial prerogative, recognised in Ochido and in Kirigha, is directed, and it amounts to an unfair labour practice within the meaning of Article 41 of the Constitution.
The Transfer of 24th March 2021: A Bona Fide Exercise of Prerogative
29. The transfer of 24th March 2021, from Kisumu to Nairobi, stands on an altogether different footing. It was preceded by a recommendation of the Head of Medical Services dated 19th March 2021, itself prompted by the Claimant’s own repeated travel to Nairobi for cardiac review while stationed at Kisumu, and was processed through an internal memorandum of the Head of Human Resources dated 23rd March 2021 for ratification by the Human Resource Management Committee, before being communicated by letter signed on behalf of the Head of Human Resources — not, this time, by the 2nd Respondent personally. There is no antecedent disciplinary process, no finding of malice, and no unexplained reversal of fortune of the kind that taints the September 2020 transfer. The Claimant’s own correspondence of 2016, in which the 1st Respondent had already once engaged, however imperfectly, with his medical circumstances by offering him a station it considered more suitable, further undermines any suggestion that the Authority was, as a matter of general practice, indifferent or hostile to his health. This court is not satisfied that the transfer of 24th March 2021 was actuated by malice, illegality or arbitrariness, and declines to disturb it.
Discrimination: Has the Claimant Discharged the Evidential Burden?
30. Article 27(4) and (5) of the Constitution prohibit direct or indirect discrimination on a number of specified grounds, including health status, and Section 5(3) of the Employment Act, 2007 gives that prohibition statutory expression in the employment sphere. Section 5(7) of the Act places on an employer the burden of proving that discrimination did not take place “as alleged,” but that burden is not engaged by the bare assertion of discrimination; the employee must first lay before the court substantial material establishing a prima facie case of discriminatory treatment before the evidential burden shifts. This is the approach this court takes from Kendi v Safaricom Sacco Limited (Employment and Labour Relations Appeal E259 of 2023) [2025], where it was held that a claimant bears “the overriding obligation to lay substantial material before the… court, in discharge of the evidential burden establishing their treatment… as discriminatory,” and that only once that threshold is crossed does the burden pass to the respondent.
31. Measured against that threshold, the Claimant’s discrimination claim cannot succeed. He has identified no comparator — no evidence was led of any other officer, similarly graded and similarly circumstanced, whether or not sharing the Claimant’s health profile, who was treated more favourably in matters of posting or deployment. Nor has he shown a pattern of differential treatment traceable to his health status as such. This court has, in the preceding paragraphs, found the transfer of 24th September 2020 to have been arbitrary and made in bad faith; but arbitrariness and discrimination, though they may on occasion coincide, are not synonymous, and proof of the one does not, without more, establish the other. The former looks to whether the employer’s motive was extraneous, malicious or unfair; the latter requires proof that the employee was treated less favourably than others because of a listed or analogous ground. The documentary record traces the animus behind the September 2020 transfer squarely to the Mobile Plant Section incident and its disciplinary aftermath — not to the Claimant’s heart condition, which is nowhere mentioned in either the memorandum of 22nd September 2020 or the transfer letter that followed it. The transfer of March 2021, by contrast, was expressly and traceably grounded in medical considerations, and operated, if anything, to accommodate rather than penalise the Claimant’s health needs. In these circumstances, the Claimant has not laid the prima facie foundation necessary to shift the evidential burden under Section 5(7) of the Act, and this limb of his claim must fail, without prejudice to the distinct finding of unfair labour practice already made above.
Allowances: Station- and Duty-Contingent Emoluments, Not a Fixed Item of Pay
32. Section 17 of the Employment Act, 2007 recognises that wages and allowances are payable in accordance with the contract and the terms governing the particular benefit in question. Allowances, depending on their nature, can be attracted by the station to which an employee happens to be attached; others may be a fixed and portable item on an employee’s payslip, following the employee wherever he is posted. The evidence in this cause places the shift, berth productivity and extraneous allowances squarely in the former category. Berth productivity allowance, on the 1st Respondent’s uncontroverted evidence, was payable only to staff assigned to berth operations at Mombasa or Lamu, under a circular on the Berth Productivity Incentive Scheme dated 22nd September 2017; it necessarily ceased to apply once the Claimant left berth-based duty. Shift allowance, under Clause F8 of the Human Resource Manual, is payable only to staff in Grades HM2 to HM4 who are in fact rostered on a shift basis, upon the recommendation of the Head of Department; no such rostering or recommendation was shown for the Claimant after his transfer. Extraneous allowance, under Clause F7, is payable to management staff who file returns evidencing hours worked beyond the ordinary; the Claimant filed none for the period he now claims.
33. Where an allowance is, by its own governing terms, contingent upon the particular station, duty or shift pattern to which an employee is for the time being assigned, it is liable to be a moving target as that employee is transferred from one station to another, rising, falling or disappearing altogether as circumstances change. Such an allowance cannot be equated with the fixed items on an employee’s payslip — basic salary, house allowance and the like — which travel with the employee regardless of station. In such a situation, the cessation of a station- or duty-contingent allowance upon a transfer cannot, without more, be treated as a claim for loss of income, nor can it found an assertion that the employee has been demoted. This is all the more so here, where it is common ground that the Claimant retained his substantive grade of Assistant Superintendent HM4 throughout both transfers, his supernumerary status notwithstanding. The prayers for general and special damages founded on the loss of these allowances accordingly fail for want of both evidential and legal foundation, and this is without prejudice to the distinct and narrower remedy this court affords below in respect of the arbitrary manner in which the September 2020 transfer was itself effected.
The Alleged Disclosure of the Claimant’s Medical Condition
34. The right to privacy guaranteed by Article 31 of the Constitution, and the confidentiality of health information required by Section 11 of the Health Act, 2017, are not in question, and a proven breach of either would attract this court’s intervention. The difficulty for the Claimant is one of proof. The allegation that the 2nd Respondent disclosed his SVT condition at a meeting on 28th October 2021, before the Head of Inland Container Terminal, the Principal Operations Manager, shop stewards and workers on shift, is a serious one, and its seriousness demanded correspondingly cogent evidence. None of the numerous persons said to have been present at that meeting was called to testify. No minutes, incident report or contemporaneous complaint of the alleged disclosure was produced. No particulars were given of the precise words used, the manner of their utterance, or the specific reaction they are said to have provoked among those present, beyond the Claimant’s own general assertion that his condition was cited “as medical grounds for his deployment to Nairobi” — an account that, without more, is equally consistent with an internal,
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