Milimani Law Courts/FILE The Employment and Labour Relations
Court has dismissed a petition challenging staff redeployments at the State
Department for Public Health and Professional Standards
In
her ruling, Justice Monica Mbaru found the court lacks jurisdiction to hear
public interest litigation brought by individuals who are not employees.
Philip Mallah, who described himself as "an adult male championing for the constitutional rights of Kenyans to fair labour practices," had sought to quash a redeployment letter dated September 9 last year.
The application deadline for the deployment was September 15 last year.
Mallah argued that junior public health officers were elevatedat the detriment of senior ones, negatively impacting public health service delivery.
“The redeployment of staff was carried out contrary to the Public Service Commission Act, the public service regulations, and the public service human resource manual and it did not take into account the seniority of serving officers,” the court heard.
“The petition is that there is evidence of extreme injustice to the detriment of directors that initially held these positions, indicating a malicious scheme orchestrated by the respondents against aggrieved persons.”
Mallah said that the decision disregarded criteria and amounted to unfair labour practices, violating the constitution.
He thus sought to have the letter declared unconstitutional and have it quashed.
The first respondent, the PSC, opposed the petition through Paul Famba, the secretary/chief executive officer, who said that there was no evidence of injustice against the affected directors.
He also challenged the petition, saying the case was brought on behalf of directors "who are not unable to act in their own names".
“The said directors, if any, could be employees; it has not been demonstrated that they have authorised the petitioner to advance their case on their behalf. The petitioner thus falls within the private law realm and not in the public interest.”
He said that the redeployment was a usual human resource function and no prejudice was demonstrated.
“The officers in the challenged memo have been posted to head units rather than to directorates; therefore, the petitioner’s allegations that directors have been prejudiced lack supporting evidence.”
Famba also challenged the admissibility of evidence, stating that the petitioner relied on “confidential evidence without showing in his petition how he obtained them".
“Without justification that he formally requested the documents and that the makers of the said confidential documents consented and furnished him with copies, the same records were obtained illegally, contrary to Articles 35 and 50 of the constitution.”
The court addressed the jurisdiction question, relying on precedent in a Supreme Court decision.
“Therefore, despite the court traditionally being the court to hear employment and labour relations disputes in terms of Article 165(5)(b) of the Constitution, the court is bound by decisions of the Supreme Court of Kenya. In this regard, the court lacks jurisdiction in the matter,” Justice Mbarũ ruled.
Concerning the evidence and the undisclosed directors, the court held that "the petitioner cannot act under a shroud over matters that are personal and without the necessary authority from the alleged right holder."
The letter dated August 21, 2024, attached as Annexure PM2, was ordered expunged from the record for failing to disclose its source.
Regarding the deployment itself, the court said that these are provided under Section 43 of the Public Service Commission Act, read together with Section B.31 of the Human Resource Policies and Procedures Manual for the Public Service.
"Seeking to quash the letter dated September 9, 2025 is to interfere with such constitutional and legal mandates without demonstration of a proper justification.
“Such a disruption is unnecessary in view of the respondents’ rights and prerogatives to organise human capital in the public service for optimal service delivery to the public.”
The petition was dismissed with costs to the first respondent.
