Pamela Nzambi Venda v Office of the Director of Public Prosecutions & 2 others

operational justification, had school going children enrolled in Nairobi and was attending to an ailing father. That the transfer was engineered by the 3 rd Respondent. The Petitioner cited Articles 22, 23, 27, 28, 41, 53 and 232 of the Constitution of Kenya as well as Rule 4 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and Section 12 of the Employment and Labour Relations Court Act as the basis of the Petition. The Petitioner averred that since joining the ODPP in July 2012, she had served diligently rising from Prosecution Counsel II DPP 10, to Principal Prosecution Counsel DPP 6, at a gross salary of Kshs.278,900 and served at ODPP Nairobi 7 years, Makadara Law Courts, less than one(1) month, Ngong Law Courts for 3 months and ODPP Kajiado County since 1st November 2023. According to the Petitioner the Respondents were in violation of the ODPP Deployment and Transfer Policy, 2018, Article 27, 41, 45, 47 and 232 of the Constitution of Kenya and prays for: 1. A Declaration that the transfer letter dated 13 th April 2026 (Ref: 20121044688 (83) transferring the Petitioner from ODPP Kajiado County to ODPP Voi Sub-County is unlawful, unconstitutional, null and void and is hereby quashed for violation of the Constitution of Kenya and the ODPP Deployment and Transfer Policy. 2. A Declaration the 1st Respondent’s failure to consider the Petitioners family obligations including educational needs of her three minor children (one being a registered KPSEA ELRC NAIROBI PET E139 OF 2026 2 OF 29

page 2 of 34

Candidate) and her ailing father post-operative care requirements, before effecting the impugned transfer was irrational and constituted a violation for Articles 45, 47 and 53 of the Constitution. 3. A declaration that the issuance of the impugned transfer letter during the petitioner’s approved annual leave without prior notice without reasons and without following mandatory reconsideration process under the Deployment and Transfer Policy violated Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. 4. An Order of certiorari calling into this court and quashing the transfer letter dated 13th April 2026. 5. An injunction restraining the Respondents whether by themselves, their servants, agents or any persons acting at their direction from implementing or acting upon the impugned transfer letter dated 13 th April 2026, or from issuing any further transfer letter to the petitioner on the same or related grounds until such time as the Respondents have: (a) Complied with the minimum four-year eligibility requirement under the Transfer Policy. (b) Given the Petitioner adequate prior notice and an opportunity to make representations. (c) Given proper consideration to the Petitioner’s family obligations in accordance with Articles 45 and 53 of the Constitution. 6. An Order directing the 1st Respondent within thirty (30) days of the date of judgment to designate the petitioner to serve at a station within the Nairobi region of the ODPP or ELRC NAIROBI PET E139 OF 2026 3 OF 29

page 3 of 34

within reasonable commuting distance of Nairobi, having given proper consideration to the petitioner’s family obligations and the educational needs of her minor children. 7. General damages for the violation of the Petitioner’s Constitutional rights under Articles 27, 41, 45, 47, 53 and 232 of the Constitution in an amount to be assessed by the court. 8. Costs of this petition be borne by the Respondents jointly and severally. 9. Such further or other relief as the court may deem just and fit in the circumstance. Respondent’s case Vide a Replying Affidavit sworn by Dr. Solomon Kiawa, in opposition to the petition, the affiant deponed that he was the Deputy Head of the Human Resources Management of the 1 st Respondent and the Respondents collectively denied the allegations set out in the petition. That the petition had not met the threshold for the grant of the orders sought and the impugned transfer to Voi-Sub-County was effected in accordance with the ODPP Human Resource Policy and Procedures ad the Deployment and Transfer Policy to provide services to all regions of the country in light of the workload to ensure access to expeditious delivery of prosecution services. That clause (v) of the Transfer Policy vested the right to reduce or enhance the number of officers working in a given station in the DPP, the minimum 4 years services at a station notwithstanding. ELRC NAIROBI PET E139 OF 2026 4 OF 29

page 4 of 34

The affiant deponed on the stations the petitioner had served since July 2012 to the present. That the petitioner was promptly informed of the transfer to Voi Sub-County and the Petitioner had served in Kajiado County for 5 years since 2021 and the paramount consideration in a deployment or transfer was the efficient, effective and fair delivery of prosecution services and the transfer was undertaken to provide resources to meet identified staffing needs, enhance integration and improve service delivery. That the appeal process initiated by the petitioner was still pending conclusion and there were timelines. That the suit stalled the process by the DPP. The affiant prayed for dismissal of the petition. When the matter came up for mention to confirm the filing of submissions, none of the parties had complied. The court directed those submissions be filed. Petitioners Submissions On exhaustion, counsel submitted that the court had already considered and rejected the argument by the Respondents and that the Petitioner had invoked the internal mechanism fully and filed an appeal. Reliance was placed on the decisions in Namu v National Police Service Commission & 2 others (2023) KEELRC 123 (KLR) William Odhiambo Ramogi & 3 others v Attorney General & 4 others (2026) KEHC 10266 (KLR) on the exceptions to the principle of exhaustion. Also cited were the decisions in Chaurembo Mambo & 7 others v Munyao & 148 ELRC NAIROBI PET E139 OF 2026 5 OF 29

page 5 of 34

others (2019) eKLR and Abdi Osman Hassan v County Government of Wajir & another (2025) KEHC 1120 (KLR). As to whether the impugned transfer violated the Petitioner’s rights under Articles 27, 41, 45, 47, 53 and 232 of the Constitution, and Section 4 of the Fair Administrative Action Act, Counsel submitted that no notice or reasons were given and the Petitioner was not accorded an opportunity to make representations citing the decision in Otieno v Office of Director of Public Prosecutions (2025) KEELRC 1165 (KLR). Counsel urged that the transfer violated Article 41, 47 of the Constitution and section 4 of the Fair Administrative Action Act and was in breach of the four-year eligibility threshold. That the Petitioner’s career was characterized by premature transfers citing the decision in Namu v National Police Service Commission & 2 others (2023) KEELRC 1231 (KLR) and Wangari v National Police Service Commission & 2 others (2025) KEELRC 2139 (KLR). Counsel submitted that the circumstances preceding the transfer of the Petitioner showed bad faith, citing the meeting at the Boardroom and other matters relating to a particular case the Petitioner was handling. That the transfer was in breach of the Transfer Policy. Counsel further submitted that the Respondent’s post-order conduct of regardeding the Petitioner as stationed elsewhere coupled with other circumstances violated the Petitioner’s right to fair labour practices. ELRC NAIROBI PET E139 OF 2026 6 OF 29

page 6 of 34

Reliance was placed on Coca Cola East & Central Africa Ltd v Maria Kagai Ligaga (2015) KECA 194 (KLR). It was further submitted that the Petitioner’s transfer to Voi violated the Petitioner’s right to equality and freedom from discrimination since there was a vacancy in Ngong and it would leave the Petitioner’s three children without either parent and thus violated the right to protection of family and rights of the child. Reliance was placed on the decision in Kariuki & another v Attorney General & 2 others (2024) KEELRC 13501 (KLR) on Convention No. 156 on Workers with Family Responsibilities as well as the decision in Republic v Deputy Inspector General of National Police Service & 3 others Ex Parte PC Stephen Mathenge (2015) KEHC 5948 (KLR). On violation of Article 232 of the Constitution, reliance was placed on Obiero v Office of the Director of Public Prosecutions (Supra) to urge that the 1st Respondent was bound by the values of public service and the transfer was issued with no stated reasons. As regard the motion dated 17th June 2026, counsel submitted that there were allegations of fact and the 2 nd, 3rd and 4th Respondents were not improperly joined citing the Court of Appeal decision in Meta Plat forms Inc & 2 others v Motaung & 186 others (2024) KECA 1262 (KLR) and Situma & 8 others v Acting Clerk of the National City County Assembly (2022) KEELRC 1474 (KLR) on striking out a party’s name. Reliance was further placed on the decision in Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya ELRC NAIROBI PET E139 OF 2026 7 OF 29

page 7 of 34

(2019) KEHC 10916 (KLR) on the essence of proper motives in the making of official decisions and statutory good faith immunity as emphasized in Kenya Human Rights Commission & 8 others v Nchebere 1667 (KLR). On reliefs, counsel submitted that the Petitioner had demonstrated Constitutional violations and was entitled to the reliefs sought including general damages. Respondent’s Submissions At to whether the 2nd, 3rd and 4th Respondents were improperly joined to the Petition, Counsel that submitted the officers were joined on account that the 2 nd Respondent signed and issued the impugned letter, the 3rd Respondent oversaw all regional County offices and the 4th Respondent was the Petitioner’s immediate supervisors and all were protected from personal liability by law and the Petitioner did not establish bad faith whose burden of proof is heavy as held in Khelif Khalif & another v Principal Secretary, Ministry of Transport & 6 others (2022) KEHC 368 (KLR). On exhaustion, counsel submitted that the Petition was not justiciable since the Petitioner had not exhausted the internal dispute resolution mechanism citing the decisions in Chaurembo Mumbo & 7 others v Munyao & 148 others (Supra) on the essence of the doctrine of exhaustion and Abdi Osman Hassan v County Government of Wajir & another (Supra) on the need to exhaust all remedies before invoking the court’s jurisdiction, to urge that the Petitioner had not exhausted the internal mechanisms ELRC NAIROBI PET E139 OF 2026 8 OF 29

page 8 of 34

and the court ought to revisit and review its earlier rejection of the principle of exhaustion at the conservatory stage. As to whether the impugned transfer was legally compliant, counsel submitted that the Respondent retained the power and discretion to ensure that its goals were met and the court could only interfere with a transfer in exceptional circumstances as held in Casmir Augustus Obiero v Office of the Director of Public Prosecutions (Supra). Counsel urged that since the power of transfer vested on the Director of Public Prosecutions (DPP) and the 4 th Respondent overruled the Petitioners’ charging decision, reference to the Petition in Pamoja Digital Empowerment CBD v Office of the Director of Public Prosecutions & Vivian Kambaga HCC HR/PET E332/2026 was of no evidential value. Counsel submitted the Deployment and Transfer Policy vested upon the DPP power to reduce or enhance the number of officers in a given station and did not have to wait for 4 years and in any case the Petitioner had been in Kajiado since 20 th April 2021 and the distinction between transfer and deployment was unhelpful. Concerning the Respondent’s failure to consider the Petitioner’s family obligations, counsel cited Clause 11(ii) (a) of the Transfer Policy on the paramount consideration in deployment and transfer namely; “efficient effective and fair delivery of prosecutorial services” citing the decision in Josephine Musenya Kivali v Vivian Kambaga & 3 others (2026) KEELRC 1662 (KLR) to urge that the letter of transfer was a notice of the transfer and transfer of staff is the managerial prerogative of the employer citing ELRC NAIROBI PET E139 OF 2026 9 OF 29

page 9 of 34

the decision in Donald Oenga Ondieki v Nyamosongo Cooperative Society Ltd (2025) KEELR 3132 (KLR) for the proposition that the employer is not required to consult an employee prior to undertaking a managerial prerogative such as a transfer. According to counsel if an employer had to consider the respective personal and family obligations of its employees in cases of transfer then there would be no staff changes. Finally, counsel urged that the based on the evidence on record, the Petitioner had not exhausted internal mechanisms rendering the Petition undertaken non-justiciable and in with accordance the impugned the transfer Constitution and was the Respondents Deployment and Transfer Policy Analysis and determination It is common ground that the 1 st Respondent transferred the petitioner from ODPP Kajiado to ODPP Voi Sub-County, Taita Taveta County, vide letter dated 13th April 2026and as adverted to elsewhere in this judgment the petitioner faulted the transfer on various fronts including having come too soon contrary to the Respondents Deployment Transfer and Policy, violation of Constitutional rights, without operational justification and nonconsideration of the petitioner’s family situation. Consequently, the issues for determination are; ELRC NAIROBI PET E139 OF 2026 10 OF 29

page 10 of 34

(i) Whether the 2nd, 3rd and 4th Respondents were improperly joined and their names should be struck out. (ii) Whether the petitioner was transferred or deployed to Voi Sub-County. (iii) Whether the transfer or deployment was in breach of constitutional provisions. (iv) Whether the Respondent ought to have taken into consideration the petitioners family situation before making the decision to deploy or transfer the petitioner. (v) Whether the petitioner is entitled to the reliefs sought. As regard misjoinder Order 1 rule 9 of the Civil Procedure Rules is unambiguous on the effect of misjoinder that no suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Additionally, under order 1 rule 10 (x) (1)… (2) The court may at any stage of the proceedings either upon or without the application of the either party and on such terms as may appear to the court to be just order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, be added. ELRC NAIROBI PET E139 OF 2026 11 OF 29

page 11 of 34

While counsel for the 2nd, 3rd and 4th Respondents contended that they were improperly joined to the suit by dint of their roles as senior employees of the 1st Respondent, they enjoyed immunity from personal, liability for acts done in their official capacity, the petitioner had neither alleged nor demonstrated bad faith and no specific relief was sought against them, counsel for the petitioner contended that the petitioner raised specific allegations the 2 nd, 3rd and 4th Respondents and whether the allegations succeeded or not will be determined in the substantive suit. In his grounds of opposition to the application to strike out the names of the 2nd, 3rd and 4th Respondent’s, counsel for the petitioner cited the decision in Meta Platforms, Inc & 2 others v Motaung & 186 others where the Court of Appeal declined to strike out parties allegedly improperly joined leaving it to the merits of the case. Counsel, further urged that the 2nd, 3rd and 4th Respondents had immunity from personal liability and thus stood to suffer no prejudice and in any event the petition was based on bad faith as opposed to official capacity. That the 1st Respondent had not denied the allegations on the three simultaneous transfers and removal of the petitioner from WhatApp groups citing the decision in Robinson v Director of Public Prosecutions on uncontroverted averments. Counsel submitted that the 3rd Respondent was a member of the Human Resource Advisory Committee the 1 st Respondent and was ELRC NAIROBI PET E139 OF 2026 12 OF 29

page 12 of 34

copied. That the transfer failed the test of fair labour practice and the Respondents post transfer conduct could not be construed as good faith. Counsel urged the court to dismiss the motion. The 2nd, 3rd and 4th Respondents are the Secretary, Prosecution Services, and Chair of the Human Resource Advisory Committee (HRAC), Head of the Department of County Affair and Regulatory Prosecution and Head of ODPP Kajiado County respectively. Other than the 4th Respondent, the Petitioner’s supervisor, who had interacted with the petitioner and who is accused of having engineered the transfer, the 2nd and 3rd Respondent’s role has not been laid out in the petition under part D on ‘Hostile Environment’ proceeding the transfer and they do not appear to have been copied in the WhatsApp messages reproduced in the Supporting Affidavit. The WhatsApp messages on record in the courts view, ought not to have been exchanged on WhatsApp. The information about an officer proceeding on leave is official and ought to be communicated to the officer officially not casually on WhatsApp as the 4th Respondent did, the practice notwithstanding, if that was the case, at the ODPP. It follows that the petitioner’s response ought to have been official and the 4th Respondent had no justification of accusing the Petitioner of sending sensitive information casually. The question of who does what and when an officer proceeds on leave is official ELRC NAIROBI PET E139 OF 2026 13 OF 29

page 13 of 34

and ought to be in sync with the replacement’s work schedule and agreed upon prior. In the courts view working days remain as such and any absence ought to be officially sanctioned. An employee ought not to schedule a private or personal commitment on a working day without the employer’s knowledge and consent otherwise it constitutes absenteeism without leave. Instructively, the officer whose absence triggered the conversation had taken leave to attend to a personal matter. Whereas the law recognizes the family and children and provides protective mechanisms for both in employment matters, they are first and foremost personal matters and cannot outshine an employment contract which confers specific rights and imposes specific duties and responsibilities of the parties. Before concluding on the WhatsApp messages, it is essential to state that even assuming that the 4 th Respondent engineered the transfer as alleged, it was not demonstrated that she could do so nor was it shown that the WhatsApp messages and other communication triggered the simultaneous transfers. It is not in dispute that the only relief the petitioner is seeking against the 2nd, 3rd and 4th Respondent’s is costs, if the court exercises its discretion favourably. ELRC NAIROBI PET E139 OF 2026 14 OF 29

page 14 of 34

It is trite law that the award of costs is discretionary but the discretion ought to be exercised judicially. It cannot, in the courts view be said to be a substantive relief. Finally, Section 15 of the Office of the Director of Public Prosecutions Act provides; No matter or thing done by a member of staff of the office or any officer, employee or agent of the office shall, if the matter or thing is done in good faith in the execution of the functions, powers or duties of the office, render the member, officer, employee or agent personally liable to any action or demand whatsoever. The foregoing provision is self-explanatory. This aspect of the contest turns on whether the petitioner had shown that the 2 nd, 3Rd and 4th Respondents acted in bad faith. As to what bad faith entails, in Republic v Advocates Disciplinary Tribunal Ex parte Appollo Mboya (2019) KEHC 10910 (KLR), Mativo J (as he then was) stated. “82 Bad faith has been defined rarely, but an Australian case defined it as ‘a lack of honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker. Recklessness was held not to involve bad faith. Bad faith is a serious allegation which attracts a heavy burden of proof…Bad faith can be inferred where there is a deliberate breach of due process or where the decision maker appears to have been influenced by irrelevant considerations. As stated earlier, bad faith requires a high standard of proof. I find no evidence in this case to demonstrate bad faith.” ELRC NAIROBI PET E139 OF 2026 15 OF 29

page 15 of 34

Although the court found and still finds it inconceivable why the 1 st Respondent did not accord the petitioner time to report to the new station or have her appeal heard and determined, the reporting time solely was not sufficient evidence of bad faith. The requirement of immediate reporting, in the court’s view fell into the realm of reasonability. In the words of Mativo J (as he then was) in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya (Supra) “Review by a court of the reasonableness of decision made by another repository of power is concerned mostly with the existence of justification, transparency and intelligibility, within the decision-making process but also with whether the decision falls within a range of possible, acceptable outcomes which are defensible with respect to the facts and the law… Legal reasonableness comprises any or all of the following namely; specific errors of relevancy or purpose; reasoning illogically or irrationally; reaching a decision which lacks an evident and intelligible justification such that an inference of unreasonableness can be drawn, even where a particular error in reasoning cannot be identified; or giving disproportionate or excessive weight in the sense of more than was reasonably necessary – to some factors and insufficient weight to others…” Finally, on the application, since the petitioner alleged that the Respondents acted in bad faith evidence of how they did so collectively ought to have been adduced or at the very least circumstances from which bad faith, could be inferred in respect of the 2nd, 3rd and 4th Respondents. The court found no such evidence. The court finds that the petitioner failed to discharge the burden of proof that the 2 nd, 3rd and 4th Respondents acted in bad faith. ELRC NAIROBI PET E139 OF 2026 16 OF 29

page 16 of 34

For the foregoing reasons the court is satisfied that the 2 nd, 3rd and 4th Respondents ought not to have been joined in this suit as respondents and their names are accordingly struck out. As to whether the petitioner was transferred or deployed from ODPP Kajiado to ODPP Voi Sub-County, the petitioner styled it as a transfer as did the Respondent. This issue arises because the Respondents Deployment and Transfer Policy makes the distinction. The office of the Director of Public Prosecutions Act does not define the terms. From the documents on record, the petitioner had had no previous transfer. Vide letter dated 24th July 2021 the petitioner was deployed to the ODPP Nairobi, and deployed to ODPP Makandara Law Courts vide letter dated 5 th July 2019, pre-deployed to the ODPP Ngong Law Courts vide letter dated 20 th April 2021 and finally deployed to the ODPP Kajiado vide letter dated 1 st November 2023. Under the Office of the Director of Prosecutions Deployment and Transfer Policy (hereinafter Deployment and Transfer Policy) 2018, Transfer is defined as the relocation of an officer from the duty station to a new duty station and matters relating to the officer including the pay point of the officer is changed to reflect the new station. On the other hand, Deployment is defined as; the temporary movement of an officer from one station to another station for a specified period of time and in which the pay point remains at the ELRC NAIROBI PET E139 OF 2026 17 OF 29

page 17 of 34

original station in which the officer was initially posted prior to the deployment. Strangely, none of the letters deploying or redeploying the petitioner to the Ngong Law Courts, Makadara Law Courts or ODPP Kajiado specified the duration the petitioner was supposed to remain in any of the duty stations. Similarly, the petitioner was initially deployed to the ODPP Nairobi effective 31st July 2012 and served until 1st August 2019 when she was deployed to Makadara, a duration of about 7 years. It is descendible that the Respondent uses the two terms interchangeably. For instance, while the petitioner’s movement from the ODPP Makadara Law Courts to the Ngong Law Courts was a deployment, yet it was inter-county, the movement of Mr. Ngigi Geoffrey Mwaura from ODPP Taita Taveta to the ODPP Mombasa was a transfer. On this issue the court finds that the wording of the letter was inconsequential. The court notes that the Respondent’s Deployment and Transfer Policy borrows from the practice of the National Police Service. Nothing turns on this issue. In order to determine whether the transfer or deployment of the petitioner to Voi Sub-county violated her constitutional and/or statutory rights as alleged, it is critical to evaluate the Respondents Deployment and Transfer Policy vis-à-vis the circumstances of this case and the law. ELRC NAIROBI PET E139 OF 2026 18 OF 29

page 18 of 34

Under Section 3 of the Policy The objective of the policy is to provide for smooth, predictable and equitable deployment and transfer of staff to minimize undue disruption to the provision of quality, impartial and timely prosecution services. Significantly, the policy is governed by progressive principles including officer’s acceptance to serve the people of Kenya wherever they may be called upon to do so, experiences in different parts of the country, frequent movement to avoid familiarity with the community in the area of service, different exposure and experience in different areas, equal opportunity, exception transfer or deployment, avoidance of disruption of service delivery avoid undue suffering of the officer or the family, giving officer due for transfer adequate notice to dispense task at hand, organize family affairs including school arrangements for any children they may have, service to all Kenyans paramount, ensuring gender balance in stations and diversity of the people of Kenya and reasonable accommodation for all officers with disabilities. Under Section 5 (ii) (a) Transfer decisions shall be made by the Director of Public Prosecutions and he may delegate the implementation of this Policy to the Regional Heads or Deployment Committee. (b) The Head of region/supervisor may recommend to the Head of Department to refer a matter on deployment or transfer to the Deployment Committee for deliberations. ELRC NAIROBI PET E139 OF 2026 19 OF 29

page 19 of 34

(c) The Deployment Committee shall deliberate on such matters related to transfers and deployment and make recommendations to the DPP for approval. (d) The DPP may deploy or transfer an officer on recommendation by the Deployment Committee or on his own volition to address staffing needs in the Department and stations. (e) In case of an urgent need to transfer an officer to a station authority may be sought by the Head of region from the Head of County Affairs and Regulatory Prosecutions for immediate transfer and the case may be presented to the Committee for ratification. Under Section 5 (iii) of the Deployment and Transfer Policy. (a) The normal approximate tenure of posting for each officer shall be four (4) years save for hardship stations where the tenure shall be three (3) years. The DPP may where necessary retain an officer in one station for not more than five (5) years. (b) Where an officer is promoted to a higher rank while serving in a station and there is no vacancy in the current station for the position, she/he has been promoted to, the officer may be transferred to another station even if she/he has not served the minimum three (3) years in that station. On timing of transfer, Section 5 (iv) provides: (a) As far as possible, the ordinary transfer of officers shall be effected by the 30th October every year and the officer ELRC NAIROBI PET E139 OF 2026 20 OF 29

page 20 of 34

transferred in the annual chain shall be requested to report to their new stations in January of the following year. (b) In cases of special transfers other than those in the annual chain as defined n section 8(a) of this policy, the reporting date shall be indicated in the transfer letter to be issued by the DPP. Under section (v) The number of officers at a station shall be determined by the workload at a station and the DPP reserves the right to reduce or enhance the number of officers working at any given station. As adverted to in the Ruling delivered on 17 th June 2026, the Respondent’s Deployment and Transfer Policy identified various categories of leave such as, ordinary, special. Appointment to special functions on promotion or to address specialization or certain skills and the only procedure is that: Th DPP shall write to the officer informing him/her of the transfer and the station she/he of the transfer and the station she/he will be required to move it. Section 10 of the Deployment and Transfer Policy sets at the procedure for reconsideration of a transfer by employees. In the courts view, if all the parties namely, employee who is requesting reconsideration of transfer, the DPP, Deployment Committee and DPPs approval, acted within reasonable time the decision ought to be out within 21 days of the request. The only ELRC NAIROBI PET E139 OF 2026 21 OF 29

page 21 of 34

challenge with the process is that the person who signed the letter of transfer sits on appeal over his decision. However, the Policy in grounded on principles that require the DPP to exercise the powers of the office objectively, reasonably and in the interest of the organization’s mandate, exigencies of duty and the employees. The DPP is required to strike an optimal fulcrum for the lever to turn and not go down. From the evidence availed by the parties it is common ground that the petitioner’s transfer to ODPP Kajiado was not ordinary or specifically defined. Using the letter addressed to Mumu Mwende Kavindu dated on even date transferring her to ODPP Kajiado with immediate effect and analogous to the petitioner’s letter had no explanation for the urgency in reporting to the new duty station. In the case of the petitioner, the letter of transfer was written when she was on annual leave thereby violating section 3(vi) of the Deployment and Transfer Policy. Secondly, and puzzling, the petitioner was accorded no notice to report to the new station a distance of 329 km by road, about 5 ½ hours. The reporting was immediate. Blacks Law Dictionary defines the term immediate as; “Present; at once, without delay; not deferred by any interval of time, denotes that action is or must be taken either instantly or without any considerable loss of time. ELRC NAIROBI PET E139 OF 2026 22 OF 29

page 22 of 34

The words ‘immediate effect’ means that the act or thing sought to be done or stopped must happen right away, at once or instantaneously. Thus, paragraph one(1) of the letter of transfer was in breach of section 3(viii) of the Deployment and Transfer Policy on adequate notice for an employee to make arrangements for his/her family including schooling for children, if any. Needless to belabour, the Respondent must have been aware of the Petitioner’s family as it was part of the records an employee is required to disclose as dependents for record keeping and medical cover generally. Significantly, save for the deployment from Ngong Law Courts to ODPP Kajiado, which was with immediate effect, in the earlier 3 deployments to ODPP Nairobi, the Petitioner was accorded 6 days, to ODPP Makadara Law Courts, one (1) month and ODPP Ngong Law Courts 12 days, yet the new duty stations did not require relocation from Nairobi. The Respondent could have ameliorated the situation by notifying the Petitioner formally that there was a proposal to transfer her to ODPP Voi before the letter was issued. Needless to gainsay, transfer of employees is no longer a secret or winning card by the employer owing to societal dynamics and vicissitudes of life. ELRC NAIROBI PET E139 OF 2026 23 OF 29

page 23 of 34

A diligent human resource professional requires no instructions on how to conduct effective and efficient transfers for optimal service delivery. In a transfer the member of staff should be the focus not the service, for the simple reason that one is dependent on the other. The requirement that the Petitioner proceeds as to Voi Sub-County immediately violated section 3(vi) and (vii) of the Deployment and Transfer Policy. Although section 5(v) of the Policy accorded the DPP the right to ignore the various requirements on transfer in order to ensure access to and expeditious delivery of prosecution services to the public, a reading of the Policy evinces that the DPP was obligated to exercise his powers in a rational, practical, reasonable, consistent and pragmatic manner. This is because the drafters of the rules knew that the transfer of an employer had relational, familial and financial implications among others. It disrupts the relative stability the employee was accustomed to and require planning, which justifies the need for adequate notice to inter alia enable employee psychologically adjust to the reality and plan the execution. Prosecutorial, judicial and administrative parliamentary are not emergencies. processes including They are flexible and adjustable so should be the transfer of employees. ELRC NAIROBI PET E139 OF 2026 24 OF 29

page 24 of 34

Finally on this issue, the Petitioner rendered no verifiable evidence to prove that the Respondent was aware of the fact that E.K.M was a registered candidate for the Kenya Primary School Education Assessment (KPSEA), ages of E. K. M in Grade 4, and E. K. M in PPI, the fact that the Petitioner’s husband worked in Nandi County and that the Petitioner was taking care of her 74-year-old father who was recovering from an open-heart surgery. This is because these are the two grounds the petitioner relied on in her appeal for reconsideration of the transfer. As found in the Ruling delivered on 17th June 2026, the petitioners transfer letter dated 13th April 2026 violated the Respondent’s Deployment and Transfer Policy, 2018. As to whether the transfer was in violation of the petitioner’s Constitutional rights and fundamental freedoms, the petitioner cited the provisions of Article 47, 41, 27, 45 and 53 of the Constitution of Kenya. These are the rights to fair administrative action, fair labour practices, equality and freedom from discrimination, family and rights of children. Articles 47 guarantees the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair and provision of written reasons for any action that has affected, likely to adversely affect any right or fundamental freedom of a person. ELRC NAIROBI PET E139 OF 2026 25 OF 29

page 25 of 34

Section 4 of the Fair Administrative Action Act outlines the rights of the person including prior notice of the proposed administrative action, opportunity to be heard, notice of right to a review or internal appeal against the decision, reasons, right to crossexamine, right to legal representation, availment of evidence or materials to be relied upon in decision making. According to the petitioner the transfer adversely affected her right family and the rights of her children to parental care and compliance with Section 4of the Fair Administrative Action Act was necessary. Transfer of staff is decision taken by the employer based on the internal policies and procedures, which are an integral part of the contract of employment. It is a term of the contract of employment and an employer’s managerial prerogative and it is typical dictated by length of service in a particular station, employee’s request, medical considerations and distribution of the human capital at the disposal of the employer. It can also be on account of promotion and other innumerable considerations as spelt out in the internal policy manual or rules. See in this regard Obiero v Office of the Director of Public Prosecutions (Supra). Raphael Kihara Ruthuku v Kenya Revenue Authority (2019) EKLR Mugo v ASP Co. Ltd (2024) KEELRC 191 (KLR) Mugegi v Chief Executive Officer, Kenya Development Leather Council & another (2024) KEELRC 14157 (KLR). It is trite that transfer cannot be used as a form of disciplinary action. Is the employer bound to give reasons for the transfer? For ELRC NAIROBI PET E139 OF 2026 26 OF 29

page 26 of 34

a public officer, the reason (s) for transfer is to render services elsewhere on account of lapse of the prescribed period, enhance capacity and so forth. Transfers are routine at the workplace and in the case of a public officer, acceptance of employment denotes acceptance to serve the public in any part of Kenya, even outside Kenya in the case of those serving at the Ministry of Foreign Affairs. All that the employer is required to do is to comply with the terms of the contract and attendant policies or manuals or codes with specific reference to the provisions on transfer and the applicable law. The law is only concerned with the fairness of the process and in particular compliance with the terms of the contract of employment which seldom provide that reason for transfer shall be given. Clearly, the employer has no carte blanche in effecting transfer of staff. Perhaps what made the petitioner’s transfer extra ordinary is because it did not fall under any of the categories of transfer under the Respondent’s Deployment and Transfer Policy, was unexpected, effected during approved annual leave and reporting was immediate notwithstanding the fact that the new work station was far away where daily commute would not be possible. All that the employer was required was to do was to accord the petitioner reasonable notice in consonance with its Deployment and Transfer Policy. Concerning the right to family, it is common ground that the petitioner is married with three (3) children. ELRC NAIROBI PET E139 OF 2026 A transfer akin to 27 OF 29

page 27 of 34

previous deployments would not affect her other responsibilities. The transfer, in the court’s view did not violate or infringe the petitioner’s right to have a family. Needless to belabour many public officers render services far away from their families and visit them periodically, as when opportunity arises. It happens the world over and couples endeavour to cope as it is the reality of the work place for now. Both the right to work and the right to family are constitutional and must co-exist. Indeed, the right to marry is sometimes hindered by the absence of work or source of livelihood. Article 53 of the Constitution guarantees the rights of children and in particular, the rights to basic nutrition, shelter, health care, protection from abuse, violence and parental care and protection which ought to be equally shared between the parents. Would a transfer per se infringe on the petitioner’s children’s rights? The courts is not persuaded that an ordinary transfer of a public officer violates the educational or other rights of their children. Indeed, matters transfer are seldom litigated by dint of being terms of the contract of employment and any concerns are resolved internally. The petitioner knew that at one point she would be transferred outside the town or city of current residence, perhaps the only challenge is that it came early and at a time when there was an impending examination and a father who required post-surgery care. ELRC NAIROBI PET E139 OF 2026 28 OF 29

page 28 of 34

Under Article 43 of the Public Service Commission Act, which applies to all public bodies and persons holding office in the public service; (1) … (2) … (3) In effecting a transfer the following shall be taken into account(a) The transfer shall lead to improved service delivery. (b) The interest of the children if any, of the affected public officer; and (c) The transfer shall not be arbitrary. The foregoing provisions are couched in mandatory tone. In assessing the essence of a transfer, it is presumed that it was undertaken to enhance service delivery unless there is evidence to the contrary. None has been availed in this case. Granted that the transfer on similar terms affected three other officers, it could not have been arbitrary. It was planned. Based on the framing of the letter of transfer dated 13 th April 2026 it requires no emphasis that the interest of the petitioner’s children was not taken into consideration. In a nutshell, the Respondent did not act in consonance with the provisions of section 43 (3) of the Public Service Commission Act. Under Article 41of the Constitution of Kenya; (1) Every person has the right to fair labour practices. ELRC NAIROBI PET E139 OF 2026 29 OF 29

page 29 of 34

(2) Every worker has the right – (a) To fair remuneration; (b) To reasonable working conditions (c) To form join or participate in the activities and programmes of a trade union; and (d) To go on strike. Terms of transfer or deployment are an essential part of the working conditions of an employee and fall under the rubric of labour practices which the constitution requires to be fair. For the reasons analyzed elsewhere in this judgment the petitioners transfer from ODPP Kajiado to ODPP Voi Sub-County with immediate effect did not meet the threshold of a fair labour practice in the context of Article 41 (1) of the Constitution of Kenya. In a nutshell, failure by the Respondent to comply with it’s Deployment and Transfer Policy 2018, and consider the interests of the petitioner’s children as ordained by the provisions of section 43 of the Public Service Commission Act rendered the petitioners transfer unfair in the circumstances. Finally, the petitioner alleged that she was discriminated by being singled out for transfer in a manner inconsistent with the treatment of other officers at ODPP. It is trite law that Article 27 of the Constitution of Kenya and Section 5 (3) of the Employment Act prohibit direct and indirect discrimination by any person on any ground including race, sex, pregnancy, marital status, health status, ethnic or social origin, ELRC NAIROBI PET E139 OF 2026 30 OF 29

page 30 of 34

colour, age, disability, religion, conscience, belief, culture, dress language or birth. Blacks Law Dictionary 10th Edition, define discrimination as; “Differential treatment; a failure to treat all persons equally when no reasonable distinction between those favoured and those not favoured’ In Peter K Waweru v Republic (2006) eKLR the court stated: “Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions… whereby persons of one such description are subjected to … restrictions to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description… Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex… a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.” It is axiomatic that the law does not outlaw every form of discrimination. It only prohibits legally unjustifiable differentiation of persons who are similarly circumstanced. See in this regard, Ol Pejeta Ranching Co. Ltd v David Wanjau Muhoro (2017) eKLR. According to the petitioner, the vacancy at Ngong Sub-County ought to have been filed by an officer from Kajiado as opposed to Kisumu. As adverted to elsewhere in this judgment, as the petitioner was being transferred to ODPP Voi Sub-County, three (3) of her colleagues were also transferred as follows; ELRC NAIROBI PET E139 OF 2026 31 OF 29

page 31 of 34

1. Mr. Ngigi Geoffrey Mwaura form ODPP Taita Taveta to ODPP Mombasa. 2. Nyagah Wanjiku Lynn from ODPP Nairobi to ODPP Kajiado. 3. Mumu Mwende Kavindu from ODPP Regional Head Nyanza to ODPP Kajiado. These transfers were made on terms similar to those of the petitioner. The petitioner, however, did not provide the respective durations these officers had served in their respective stations before the transfer, but it was ‘with immediate effect’ and signed by the same person ‘for the Director of Public Prosecutions.’ Being the comparators, the petitioner was relying on, the petitioner failed to avail evidence to show that the three (3) colleagues were similarly circumstanced and were treated differently. See Gwer & 5 others v Kenya Medical Research Institute & 3 others (2020) KESC 66 (KLR), and Gichuru v Package Insurance Brokers Ltd (2021) KESC 12 (KLR). The petitioner failed to demonstrate a prima facie case of discrimination for the Respondent to rebut. Having found as above, the petitioner is entitled to appropriate relief. (i) Declaration that the transfer letter dated 13 th April 2026 (Ref. No. 20121044688 (83) transferring the petitioner from ODPP Kajiado to ODPP Voi Sub-County was unfair. ELRC NAIROBI PET E139 OF 2026 32 OF 29

page 32 of 34

(ii) Declaration that the Respondent’s failure to take into consideration the Petitioner’s children who were minors was unlawful (iii) Declaration that issuance of the transfer letter during the petitioner’s approved leave without prior notice was unreasonable. (iv) An order of certiorari calling into this court and quashing the transfer letter dated 13 th April 2026 (Ref. No. 20121044688 (83). (v) The injunction sought is not merited as it would deny the ODPP the power to transfer prosecution staff based on exigencies of duty and on a case-by-case basis (vi) Having found that the Petitioner’s transfer to Voi SubCounty was unfair for failure to accord the petitioner adequate notice as ordained by the Respondent’s Deployment and Transfer Policy, 2018 and failure to take into account the interest of the petitioner’s three (3) children and having quashed the same, the Respondent is directed to transfer or deploy the petitioner to a station within reasonable commuting distance of Nairobi for the remainder of the year 2026. (vii) The prayer for general damages is unsustainable and it is declined. Considering that the petitioner is still in the Respondent’s employment under a contract of service, parties shall bear their own costs. Orders accordingly. ELRC NAIROBI PET E139 OF 2026 33 OF 29

page 33 of 34

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 7TH OCTOBER, 2026. DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE ELRC NAIROBI PET E139 OF 2026 34 OF 29

page 34 of 34