Introduction
1. The Petitioner submitted this Petition, asserting that his rights under Articles 22 (1), 41, 47, and 258 (2) (c) of the Constitution were being threatened and/or violated, and sought the orders against the Respondent for;
a. A declaration that the Respondent’s refusal and/or failure to promote the Petitioner to the position of Senior Administration Officer on grade KPA 5 as recommended by the Human Resource Committee on Vertical Translations was an infringement to the Petitioner’s right to fair labour practices as envisaged by Article 41 of the Constitution of Kenya.
b. A declaration that the Respondent’s failure and/or refusal to hear and determine the Petitioner’s appeal lodged vide a letter dated 14th August 2023 violated the Petitioner’s right to a fair hearing guaranteed by Article 50 of the Constitution of Kenya.
c. declaration that the translation of the Petitioner to the post of Administration Officer, grade KPA 6 with subsequent transfer to Marine Oil Terminals & Marine Safety Division with effect from 1st July 2023 vide a letter dated 26th July 2023 contrary to the recommendation of the Human Resource Committee on Vertical Translations that the Petitioner be promoted to the position of Senior Administration Officer on grade KPA 5 was a violation of the Petitioner’s right to fair administrative action guaranteed by Article 47 of the Constitution of Kenya.
d. An order of prohibition, restraining the Respondent from implementing the impugned notice of retirement dated 4th April 2024, capturing the Petitioner’s retirement position as Administration Officer on grade KPA 6 instead of Senior Administration Officer on grade KPA 5.
e. An order of mandamus compelling the Respondent to forthwith and unconditionally capture the Petitioner’s retirement position as Senior Administration Officer on grade KPA 5 for purposes of calculating his terminal benefits upon retirement on 9th August 2024.
f. An order of mandamus compelling the Respondent to issue him with a Certificate of Service capturing the Petitioner’s retirement position as Senior Administration Officer on grade KPA 5.
g. An order of mandamus compelling the Respondent to pay the Petitioner Kshs. 611,554.00 being the variance of what he ought to have earned as a Senior Administration Officer on grade KPA 5 with effect from 1st July 2023, as recommended by the Human Resource Committee on Vertical Translation and what he was actually paid as an Administration Officer on grade KPA 6.
h. An award of exemplary and punitive damages against the Respondent for violation of the Petitioner’s right to fair labour practices, right to fair administrative action and right to a fair hearing as guaranteed by Articles 41, 47 and 50 of the Constitution of Kenya.
The costs of this Petition and interest thereon be provided for.
2. The Respondent resisted the petition with a replying affidavit from its Principal Human Resource Officer [Manpower Services], Catherine Njoroge, arguing that the petition was filed in bad faith, solely to assist the Petitioner in unjustifiably securing enhanced pension benefits. The orders sought cannot be justifiably availed to him.
The Petitioner’s Petition
3. The Petitioner stated that the Respondent temporarily employed him as a Checker on 1 May 1984. In a letter dated 20 November 1985, the Respondent confirmed him as a full-time employee.
4. By a letter dated February 4, 1986, the Petitioner was confirmed as a permanent and pensionable employee of the Respondent, effective December 1, 1985. The Respondent reiterated this confirmation in a letter dated March 1, 2024.
5. On 28th October 1991, the Respondent promoted the Petitioner to the position of Clerk, grade PA8, effective 20th October 1991.
6. By a letter dated 3rd July 1995, the Petitioner was recommended for promotion to the role of Time Clerk, grade PA7, after serving in an acting capacity from 1st October 1994 to 3rd July 1995.
7. On 3 July 2018, the Respondent promoted him to the position of Human Resources Officer (Change Management), Grade HM3, Post No. 310-6008, effective from 1 July 2018.
8. In a letter dated 23 July 2022, after reviewing its organisational structure, the Respondent transferred the Petitioner to the position of Administrative Officer (Administration).
9. Through sheer hard work, unwavering commitment, and incomparable devotion, the Petitioner gradually ascended the ranks to the role of Senior Administration Officer.
10. The Petitioner occupied the role of Administration Officer (Administration & Accounts) at grade KPA 6 until approximately June 2023, when he was recommended for promotion by the Human Resource Committee as part of the Vertical Translations process to the position of Senior Administration Officer at grade KPA 5, as documented in the vertical translation sheets.
11. He claimed that following the retirement of the former Senior Administration Officer (Administration & Accounts) in April 2022, the Petitioner was authorised to act in that role and was later recommended for promotion to officially occupy the position.
12. Unfortunately, despite the Petitioner’s commendable work ethic and impressive track record, he has been unable to reap the benefits of the Senior Administration Officer position that the Human Resource Committee on Vertical Translations recommended for him, effective July 1, 2023.
13. By its letter dated 24th July 2023, the Respondent invited employees dissatisfied with the translation exercise to lodge their appeals stating their translation post, designation, grade, division and the reason(s) behind their appeal.
14. Vide a letter dated 26th July 2023, the Respondent wrote to the Petitioner regarding Translation onto the new KPA establishment, communicating the Petitioner’s translation to the post of Administration Officer, grade KPA6, with subsequent transfer to Marine Oil Terminals & Marine Safety Division with effect from 1st July 2023.
15. The Respondent’s letter dated 26 July 2023 and referencing “Translation onto the new KPA establishment” was served upon the Petitioner on 10 August 2023.
16. On 14th August 2023, the Petitioner sent a letter to the Respondent appealing his transfer to the new KPA establishment. He argued that his assignment to Marine Oil Terminals & Marine Safety Division contradicted the Human Resource Committee's recommendation for his promotion to Senior Administration Officer.
17. Furthermore, his direct supervisor, Mr. Bildad Kisero, the Manager of the Administration Division, sent a letter on 18 October 2022 to the Respondent’s Human Resources Manager. This letter discussed the Petitioner's promotion from grade KPA 6 to grade KPA 5, which had yet to be executed. The failure to implement the promotion was in violation of the Respondent’s new organisational structure.
18. Although the Petitioner’s promotion to Senior Administration Officer was recorded in the SAP system, it was subsequently amended to a reassignment to the Marine Oil Terminals & Marine Safety Division. The vertical promotion (from grade KPA 6 to grade KPA 5) was neither executed nor mentioned in the Respondent’s letter dated 26th July 2023 that reassigned the Petitioner.
19. No reasons were provided to the Petitioner regarding why the Human Resource Committee's recommendation for his promotion to Senior Administration Officer was not implemented.
20. Despite his ceaseless follow-ups, the Respondent did not communicate regarding his appeal against his translation onto the new KPA establishment lodged vide a letter dated 14 August 2023.
21. He added that if the orders requested in his petition are not granted, his terminal benefits upon retirement on August 9, 2024, will be calculated based on his position as an Administration Officer at grade KPA 6, rather than as a Senior Administration Officer at grade KPA 5.
22. The Respondent contravened Article 10 of the Constitution of Kenya. It neglected, disregarded, and failed to provide justifications and lacked transparency regarding the failure to execute the management's recommendation for his elevation to the position of Senior Administration Officer at grade KPA 5, as explicitly documented in the translation sheets. Instead, he was reassigned to the Marine Oil Terminals & Marine Safety Division, effective from 1st July 2023, holding the position of Administration Officer at grade KPA. 6.
23. The Respondent contravened Article 24 of the Constitution of Kenya, which prescribes that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable. The Respondent limited his right to fair labour practices and fair administrative action by transferring him to the Marine Oil Terminals & Marine Safety Division as an Administration Officer on grade KPA 6, contrary to the management’s recommendation for the position of Senior Administration Officer on grade KPA 5, without providing any explanation.
24. Additionally, the Respondent infringed upon his right to fair labour practices and fair remuneration enshrined in Article 41 of the Constitution of Kenya. Despite the Petitioner holding the position of Senior Administration Officer since April 2022, when the previous office holder retired, and being recommended by the Human Resource Committee on Vertical Translation to fill this position from 1st July 2023 substantively, the Respondent has never compensated the Petitioner in a manner commensurate with the role of Senior Administration Officer.
25. The Respondent infringed on his right to fair administrative action guaranteed by Article 47 of the Constitution as it did not follow any laid down procedure while transferring the Petitioner to Marine Oil Terminals & Marine Safety Division as an Administration Officer on grade KPA 6 instead of promoting him to the position of Senior Administration Officer on grade KPA 5 as recommended by the management and captured on the vertical translation sheets.
26. Contrary to the postulations of Article 50 of the Constitution of Kenya 2010, which provides for the right to a fair hearing, the Respondent contravened this provision by failing to accord the Petitioner a fair hearing of his appeal dated 14th August 2023 regarding his transfer to Marine Oil Terminals & Marine Safety Division as an Administration Officer on grade KPA 6. Furthermore, despite the significant passage of time, the Respondent has failed, ignored, and/or refused to provide the Petitioner with an opportunity to be heard on his appeal, despite his persistent in-person follow-ups.
27. Section 4 of the Fair Administrative Action Act stipulates that every person is entitled to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, the Respondent violated this provision by not employing a lawful, reasonable and procedurally fair approach while transferring the Petitioner to Marine Oil Terminals & Marine Safety Division as an Administration Officer on grade KPA6 contrary to the recommendation of the management which has approved the Petitioner’s promotion to the position of Senior Administration Officer.
28. The Respondent acted in excess of its power by failing and/or refusing to promote the Petitioner to the position of Senior Administration Officer on grade KPA 5 as recommended by the management and captured on the vertical sheets but instead transferring him to Marine Oil Terminals & Marine Safety Division as an Administration Officer on grade KPA 6.
29. He had a legitimate expectation that he would be vertically promoted to the position of Senior Administration Officer on grade KPA 5, as had been unequivocally recommended by the management and captured on the vertical translation sheet. Regrettably, in outright contravention of the recommendation, the Respondent transferred the Petitioner to Marine Oil Terminals & Marine Safety Division as an Administration Officer on grade KPA 6, a transfer not backed up with any reason, explanation, or logic.
30. In light of the Respondent’s blatant refusal and/or failure to affirm the promotion of the Petitioner to the position of Senior Administration Officer at grade KPA 5, as recommended by the Human Resource Committee on Vertical Translations, the Petitioner has not received a total of Kshs—611,554.30 representing the discrepancy between the basic salary and allowances for grades KPA 6 and KPA 5.
The Response
31. The Respondent stated that prior to his retirement on 9th August 2024, the petitioner was a pensionable employee with effect from 1st December 1985.
32. His last position was Administrative Officer KPA6, Post No. 630-1002, the Marine Oil Terminals & Marine Safety Division. Prior to this last position, he worked in the same capacity as an Administrative Officer in the Administrative Division of the Respondent.
33. In 2022, the process of reviewing the Respondent’s Organisational Structure was concluded, culminating in a new Staff Establishment. The process of translating employees onto the new Establishment was concluded in 2023. The Petitioner was translated into the established post of Administrative Officer.
34. Being a Human Resource function, the roles of Administrative Officer in any of the Respondent’s Divisions are similar, so much so that any Administrative Officer in the Respondent entity can be posted to any Division or Department to discharge the same roles.
35. The Petitioner’s translation to the post of Administration Officer, Grade KPA6, with subsequent transfer from the Administrative Division to the Marine Oil Terminal & Marine Safety Division effective 1st July 2023, was in order and within the employer’s prerogative, without any prejudice to the Petitioner whatsoever. The transfer accorded with the provisions of Clause 2.35.8 of the Respondent’s Human Resources policies and Procedure Manual 2021.
36. The Petitioner initiated the instant petition solely to attempt to get enhanced pension benefits. The petition raises matters that are all outside the jurisdiction of this Court.
37. The Respondent hasn’t violated or threatened to violate any of the Petitioner’s constitutional rights. Further, the Petitioner has just made general and vague allegations regarding the alleged violation of threatened violation.
38. The allegation that the Petitioner was recommended for promotion by the Human Resources Committee on Vertical Translation to the position of Senior Administrative Officer on grade KPA 5 is untrue for the following reasons;
I. The alleged letter of recommendation and translation sheets relied upon by the Petitioner are obviously not on the Respondent’s letterhead, nor do they have any signature whatsoever
II. The Respondent’s records do not show the said recommendation.
III. The alleged position of a Senior Administrative Officer, is non-existent in the Administration & Accounts section, in the approved KPA Organizational Structure.
IV. Recommendations do not amount to promotions, and neither do they create a binding obligation on an employer. Further, there can be no promotion to a non-existent position in the Respondent’s Establishment.
39. It was further asserted that the Petitioner’s allegations that he held a position of Senior Administration Officer [Administration & Accounts] in an acting capacity following the retirement of its substantive holder in April 2022 are untrue. The position was non-existent in the Organisational Structure, and at no point was the Petitioner qualified to act in a position in Grade KPA 5, which is a grade higher than his last position held.
40. Acting appointments in the Respondent entity are only made in accordance with Clause 4.5.11 of its Human Resources Policies and Procedure Manual. The stipulation states that the authority to act in a certain position must be given in writing by the Managing Director.
41. The allegation that the Petitioner’s promotion to the position of Senior Administrative Officer was effected on the SAP System and later changed to reassignment to the Marine Oil Terminal & Marine Safety Division is unfounded. The Petitioner was never qualified to hold any Senior Administrative Officer Grade KPA5 position and was never appointed to such a position.
42. The Petitioner was paid all his dues, including the remuneration for the few days he worked in August 2024.
Determination and Analysis.
43. I have carefully considered the petition, the affidavit in support thereof, the replying affidavit by the Respondent, and the parties’ Counsel’s submissions, and the following issues emerge for determination;
I. Whether this Court is seized with the jurisdiction to hear and determine this petition.
II. Whether the Respondent threatened or violated the Petitioner’s constitutional rights set out in the petition.
III. Is the Petitioner entitled to the reliefs sought in the petition?
44. The Employment and Labour Relations Court possesses exclusive jurisdiction over all matters referenced in the Act establishing the Court, namely the Employment and Labour Relations Court Act, and any relevant legal provisions. In my view, the underlying rationale for conferring exclusive jurisdiction upon the Employment and Labour Relations Court was the Court's composition of judges equipped with knowledge, experience, and expertise in the field of labour law. Given this, it cannot be true that when Kenyans advocated for the creation of the Court through the constitution, they envisioned a court with skeletal jurisdiction on matters of employment and labour relations, susceptible to jurisdictional invasion.
45. It is noteworthy that there exist matters not explicitly delineated within the Act as being within the jurisdiction of the Employment and Labour Relations court; nevertheless, these matters must be adjudicated by the Employment and Labour Relations Court. At first glance, these issues may seemingly fall outside the exclusive jurisdiction of the court, leading one to potentially conclude that the Court lacks jurisdiction over them. Such an interpretation would undoubtedly undermine the statutory objective of fostering the effective resolution of labour disputes and the overarching purpose for which the Court was established. The jurisdiction bestowed upon the court mustn't be narrowly construed.
46. The Respondent contended that the Petitioner’s petition primarily concerns his desire for an improved ‘pension package’ through indirect means via the Court process. Furthermore, this Court lacks jurisdiction over matters related to pensions. Conversely, I hold a different perspective; the petition pertains to the constitutionality of an administrative act and/or conduct by the Respondent in its role as an employer, along with a violation of constitutional labour rights.
47. The Petitioner contended that following the vertical translation, the Respondent invited the aggrieved employees to appeal. Subsequently, he appealed. Up to his retirement, the Respondent had yet to hear him on the appeal or make a decision regarding it. I have carefully reviewed the Respondent’s response to the petition. It did not deny that the petitioner had lodged an appeal or explain why no decision had been made on the appeal.
48. Per Article 47 of the Constitution, every individual possesses the right to administrative actions that are prompt, effective, and lawful. The failure to resolve the Petitioner’s appeal, despite the Respondent's full awareness of his forthcoming retirement, exemplified a deficiency in promptness and efficiency on the part of the Respondent. To fail to arrive at a determination arbitrarily regarding a pending appeal lodged by an employee until he retires from his employment would not be best described in any other manner than as an unfair labour practice.
49. The Petitioner strongly asserted that the Human Resources Committee on vertical translation recommended his promotion to the next grade, KPA5. Nevertheless, for reasons unknown, the Respondent failed to implement the promotion and instead transferred him to another Division. The Respondent denied this allegation and doubted the authenticity of the documents on which the petitioner anchored his assertion. True, the documents aren’t on the Respondent’s letterhead or signed.
50. The Petitioner asserts in his submissions that if the Respondent harboured doubts regarding the authenticity of the documents, it would have been relatively straightforward for them to present his immediate supervisor to provide testimony that could potentially undermine the documents' authenticity. This reasoning is unconvincing. The exhibits were his responsibility. He held the obligation to establish their authenticity and relevance to his case. Should he have desired that the supervisor act as a witness, he was entitled to seek a witness summons to compel his appearance and provide evidence concerning the documents.
51. For the reasons stated above, I am not convinced there was a recommendation for his promotion, as he claimed. Consequently, all those reliefs he sought, based on the assertion that he should have been moved to a higher grade due to the alleged recommendation, must fail.
52. In the upshot, the Petitioner’s petition herein succeeds to a minimal extent, thus;
I. It is hereby declared that the Respondent’s failure to address his appeal lodged vide the letter dated 14th August 2023, amounted to an infringement of his right to fair labour practices under Article 41, fair administrative action under Article 47, and fair hearing under Article 50, of the Constitution.
II. The petitioner is hereby awarded general damages of KShs. 100,000 for the violation.
III. The Respondent shall pay costs to the Petitioner, which I hereby assess at KShs. 40,000.
IV. Interest on the sum awarded in [ii]above shall be at court rates from the date of this Judgment till full payment.
Read, Signed and Delivered this 22nd Day of May 2025.