REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC PETITION NO. E139 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
PAMELA NZAMBI VENDA........................PETITIONER/APPLICANT
VERSUS
OFFICE OF THE DIRECTOR OF PUBLIC PROSECTIONS …...1ST RESPONDENT
ALLOYS KEMO, OGW
SECRETARY OF PUBLIC PROSECUTIONS……………………….2ND RESPONDENT
VINCENT MONDA, OGW, adc (K)
SENIOR DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS….3RD RESPONDENT
VIVIAN KAMBAGA
ASSISTANT DIRECTOR OF PUBLIC PROSECUTIONS…………4TH RESPONDENT
RULING
Before the court for determination is the applicants Notice of Motion dated 3rd May 2026 filed under Certificate of Urgency seeking order that;
1. Spent.
2. Spent.
3. Spent.
4. Pending the hearing and determination of the petition the Honourable court be pleased to issue a conservatory order directing the 1st Respondent shall maintain the status quo ante and ensure that the petitioner shall continue to serve at the ODPP Kajiado County with normal duties as signed and without prejudice to the Petitioner/Applicant’s substantive rights, seniority, emoluments or benefits.
5. In the ALTERNATIVE to (4) above a Conservatory order be issued directing the 1st Respondent to designate the petitioner to serve at any station within the Nairobi Region of the office of the Director of Public Prosecutions as the 1st Respondent may elect such designation to be communicated to the petitioner within 7 days of grant of the order without prejudice to the petitioner’s substantive rights, seniority, emoluments or benefit.
6. FURTHER IN THE ALTERNATIVE and in the event the 1st Respondent fails to designate a station within 7 days a Conservatory order directing that the petitioner shall be attached to the office of the Director of Public Prosecutions Nairobi (Head Quarter), for allocation of duties by the Secretary Prosecution Services pending the hearing and determination of the petition.
7. Pending the hearing and determination of the petition the court be pleased to issue a conservatory order directing the Respondents whether by themselves, their servants, agents or any persons acting under their direction or authority to refrain from;
(a) Issuing any further transfer notice to the petitioner on the same or related grounds;
(b) Commencing, continuing or threatening any disciplinary proceedings against the petitioner arising from or connected to the matters forming the subject of this petition, including allegation of failure to report to Voi;
(c) Taking adverse action against the petitioner’s emoluments, allowances, benefits, seniority or conditions of service; and
(d) Subjecting the petitioner to any victimization, discrimination or hostile treatment connected to the filing of this petition or the exercise of her constitutional rights.
8. The costs of this application be borne by the Respondents.
9. The court be pleased to grant such further or other orders as it may deem just and fit in the circumstances.
The Notice of Motion is expressed under Articles 22, 23 and 47 of the Constitution of Kenya, section 12 of the Employment and Labour Relations Court Act and Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and is based on the grounds outlined on its face and the petitioner’s Supporting Affidavit sworn on 3rd May 2026. The petitioner deposes that she is a Principal Prosecution Counsel in the service of the ODPP effective 18th July 2012, married with three (3) children, all minors enrolled at M.E.C Nairobi with the eldest scheduled to sea the KPSEA Examination in October 2026. That she had an elderly father aged 74 who underwent surgery at the Aga Khan University Hospital, Nairobi and being the only family member in the city, provided post-operative care.
That while on approved annual leave, a letter dated 13th April 2026 transferred her to ODPP Voi Sub-County, Taita Taveta County with immediate effect. The petitioner deposes that such a transfer would dissolve her family unit strand a national examination’s candidate without parental supervision and leave her father without care giver.
The petitioner further depones that she had risen from Prosecution Counsel II DPP 10 in 2012 to Prosecution Counsel I JG ‘L’ in June 2014, Senior Prosecution Counsel DPP & JG ‘M’ in May 2016 and Principal Prosecution Counsel DPP 6 and had served diligently in Nairobi ODPP office, Makadara Law Courts, Ngong Law Courts and ODPP Kajiado County effective 1st November 2023 and had thus served for 2 years and 5 months at Kajiado below the 4 years prescribed by the ODPP Deployment and Transfer Policy.
The affiant deposes that at Kajiado she was the defacto Deputy to the 4th Respondent, Ms Vivian Kambaga which entailed administrative co-ordination, court allocations and other functions on her behalf. It is the affiant’s case that her apologies for not attending a staff meeting at Kimbo Slopes Hotel on 28th November 2025 was not recorded in the minutes.
That on 3rd March 2026 the 4th Respondent requested her to handle Ms Halima’s matters on 16th and 18th March 2026 but the Petitioners indicated that she was attending to her sick father and sought a replacement but the 4th Respondent was adamant. That during a meeting of the two on 9th March 2026 in the Boardroom, the 4th Respondent raised the issue of non-attendance of the meeting on 28th November 2025, unspecified complaints on unidentified files and whether the petitioner had any challenges working as the 4th Respondent’s Deputy.
The petitioner deposes that she was on 15 days leave effective 1st April 2026 when she received the letter of transfer.
The affiant further depones that Mr. Ngigi Geoffrey Mwaura and Nyagah Wanjiku Lynn were trasnsfered from ODPP Taita Taveta and Nairobi Regional office to ODPP Mombasa and ODPP Kajiado respectively on 13th April 2026 and the 4th Respondent welcomed Nyagah Wanjiku Lynn to Kajiado via WhatsApp message on 17th April 2026 and one Mumo Mwende Kavindu from Kisumu filled the vacancy at the Ngong Law Courts.
According to the affiant, the transfer and welcome message was evidence of pre-planning and bad faith. That all her children were minors in Grade 6, 4 and PPI and her husband wss an employee of the County Government of Nandi based at Kapsabet, approximately 650km from Voi.
The affiant deposes that her appeal dated 16th April 2026 had not been responded to within 14 days as per the Deployment and Transfer Policy and had thus exhausted the internal appeal mechanism.
That the Petitioner was ready and willing to serve at any other station within Nairobi or its environs but Voi was too far in the circumstances she was in.
Finally, the petitioner deposes that her constitutional rights under Articles 47, 41, 45, 43, 27 and 232 had been violated.
In her Supplementary Affidavit the petitioner raised issue of back dated appeal, medical incapacity of the petitioner and the Respondent’s Post-order conduct of failure to assign the petitioner any work, removal from the WhatsApp group and interception and subversion of official correspondence to dispose that the work environment was intolerable.
Respondent’s case
The Respondents filed Grounds of Opposition dated 19th May 2026 and a Replying Affidavit by Dr. Solomon Kiawa the Senior Assistant Director Human Resource Management who deponed that the applicant’s motion had not met the threshold for the grant of the Conservatory orders sought and the applicant had been notified of the transfer through the Head of the ODPP Kajiado Office and the ODPP had power to reduce or enhance the number of officers working in a given station and the transfer was done in consonance with the Respondent’s Deployment and Transfer Policy and Government Policy of providing public service to all regions and efficient and effective deliver of services was critical. That the appeal mechanism was still pending.
Finally, the affiant deposed that the Respondents’ Deployment and Transfer Policy provided timelines within which the ODPP Deployment Committee would advice the DPP, being 14 days but there was no timeline within which the DPP was required to approve or disapprove the decision of the committee.
Petitioner’s submissions
As to whether the petitioner had established a sufficient case for the grant of Conservatory orders, counsel cited the decision in Giella v Cassman Brown & Co. Ltd as well as Munya v Kithinji & 2 others (2014) KESC 30 (KLR), to urge that the petition was merited because the Respondent had violated the petitioner’s right to fair labour practices as held in James Aganyo Mokaya v Teachers Service Commission (2019) eKLR, prerogative was not fettered as held in Otieno v Director of Public Prosecutions (2025) KEER 1165 (KLR), the Respondent breached its own policy on transfer and bad faith.
Counsel further urged that the Respondent’s Replying Affidavit denied nothing of substance. That since filling the suit the Respondent has refused to allocate the petitioner work and removed her from the WhatsApp group.
On exhaustion, counsel submitted that the applicant invoked the appellate mechanism and the deadline had already passed without acknowledgment or decision and no action had been taken until after the court granted orders and the respondent communicated that the appeal would be delt with during the next sitting of the Deployment Committee.
Reliance was placed on the decisions in Nasna v National Police Service Commission & 2 others (2023) KEELRC 1231 (KLR) William Odhiambo Ramogi & 3 other v Attorney General (2020) KEHC 10266 (KLR) and Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others (2019) eKLR among others to urge that since the respondent had not responded to the appeal by the petitioner, it could not contend that the internal processes had not been compelled with.
As regards clean hands, counsel submitted that the petitioner was on leave and the letter was dated 13th April 2026 to urge that the Respondents hands were unclean.
On nugatory, counsel urged that the petitioner had young children and Voi was too far coupled with the fact that she had sick father and the son’s forthcoming examination was a matter of public interest.
Respondent’s Submissions
As the whether the petition had chances of success, counsel submitted that it had none as the internal processes had not been exhausted, as per the ODPP Human Resource Policies and Procedures Manual and the appellate process was pending.
Reliance was placed on Albert Chaurembo Mumbo & 7 others v Maurce Munyao & 148 others (Supra) on the principle of exhaustion as was the decision in Abdi Osman Hassan v County Government of Wajir & another (2025) KEELRC 1120 (KLR).
In the latter case, the court upheld a Preliminary Objection on exhaustion. Counsel submitted that on that ground alone, the petition was liable to be struck out.
Counsel submitted that the petition would not be rendered nugatory and no case for discretionary orders had been made out and the petitioner had unclean hands.
Counsel urged the court to set aside the Conservatory order granted on 4th May 2026.
Analysis
The only issue for determination is whether the petitioner’s application meets the threshold for grant of Conservatory orders.
The principles that govern the grant of conservatory orders are well settled. In Judicial Service Commission v Speaker of National Assembly & another (2013) eKLR, the court expressed itself as follows; on the nature of conservatory orders.
“Conservatory orders are in my view not ordinary civil law remedies but are remedies provided under the constitution, the supreme law of the land. They are not remedies between one individual against another, but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in persona. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which only attach to a particular person.”
Similarly, in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (Supra), the Supreme Court held:
“Conservatory Orders bear a more decided public law connotation for these are orders to facilitate ordered functioning within public agencies as well as uphold the adjudicatory authority of the court in the Public Interest Conservatory Orders therefore are not unlike interlocutory injunction linked to such private party issues like ‘the prospect of irreparable harm’ occurring during pendency of a case; or ‘high probability of success’ in the applicant’s case for orders of stay.
A conservatory order ought to be granted on the inherent merits of a case bearing in mind the public interest, constitutional values and the proportionate magnitudes and priority levels attributable to the relevant cases…”
See also in this regard Alfred N. Mutua v Ethics and Anti-Corruption Commission (EACC) & 4 others (2016) KECA 596 (KLR), on public interest, Nubian Rights Forum & 2 others v Attorney General & 6 others (2019) eKLR and Board of Management of Uhuru Secondary School v City County Director of Education & 2 others (2015) eKLR.
It is clear that the facts of the case are largely agreed upon by the parties that the petitioner remains an employee of the Respondent and at all material times serving as a Principal Prosecution Counsel ODPP Kajiado and was transferred to ODPP Taita Taveta (Voi Sub County) vide letter dated 13th April 2026, received on 15th April, 2026.
Uncontested documentary evidence reveals that the petitioner sought and was granted fifteen (15) days leave effective 1st April 2026 and was thus on leave when she was abruptly transferred to ODPP Voi Sub County vide letter dated 13th April 2026 signed by Mr. Alloys Kemo for the Director of Public Prosecutions. The transfer was effective immediately.
The Respondent’s Deployment and Transfer Policy 2018 provides for various types of transfer such as ordinary for officers who have served for four (4) years in a station, special transfers on medical grounds, on appointment to special functions on prosecution and to address specialization of certain skills
On the procedure of transfer, paragraph 7 of the policy states that ‘The DPP shall write to the officer informing him/her of the transfer and the station she/he will be required to move to.
Paragraph 5 (iv) of the Policy provides:
(a) As far as possible the ordinary transfer of officer shall be effected by 30th of October every year, and the officers transferred in the annual chain shall be required to report to their new station in January of the following year.
(b) In cases of special transfers other than those in the annual chain as defined in section B (a) of this Policy the reporting date shall be indicated in the transfer letter to be issued by the DPP.
Paragraph 5 (v) states:
Notwithstanding anything contained in this policy and purely for purposes of ensuring expeditious delivery of prosecution services to members of the public;
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.
Since the petitioner had not served for 4 years at the ODPP Kajiado, had not sought a transfer on medical grounds to qualify for special transfer, had not been appointed to special functions, promotion, close to retirement or to address specialization of certain skills, it is unclear to the court under what category the transfer arose, the provisions of paragraph 5 (v) of the Deployment and Transfer Policy notwithstanding.
Notably, in cases of ordinary transfer an employee was accorded three (3) months to report to the new station. In special transfers the DPP was supposed to indicate the reporting date on the transfer letter.
Puzzlingly, in the petitioner’s case, the transfer letter had no reporting date. The transfer from ODPP Kajiado to ODPP Taita Taveta (Voi Sub County) was ‘with immediate effect’ and report to the Head ODPP Taita Taveta for allocation of duties after proper handing over to the Head ODPP Kajiado.
Clearly the DPP refused, failed or neglected to follow the Respondent’s Deployment and Transfer Policy, 2018 by not indicating the reporting date which ought to have been certain or capable of being ascertained.
Although the DPP had discretion to transfer staff from station to station to ensure expeditious delivery of prosecution services to the public, the Respondent’s Deployment and Transfer Policy cannot be construed as having given the DPP a carte blanche to transfer staff without reasonable notice to report to their new stations which would encompass time to enable the staff have appeals or requests for reconsideration of transfer made and determined by the appellate body. For unexplained reasons the petitioner was denied this opportunity bearing in mind that the transfer was other than ordinary.
Although an employer enjoys the prerogative to transfer an employee, the power ought to be exercised in a humane and reasonable manner and in good faith. It behooved the Respondent to inform the petitioner the reason for the abrupt transfer to Voi Sub County and accord her time to prepare for the transfer from Kajiado.
Similarly, the Respondent transferred the petitioner to Voi Sub-County while on duly approved annual leave. It is difficult to fathom why the Respondent could not wait until the petitioner resumed duty. A reading of the petitioner’s transfer letter creates the impression that someone wanted her out of Kajiado ODPP and its vicinity immediately.
In the court’s view, the Respondent’s conduct in relation to the transfer of the petitioner from ODPP Kajiado to ODPP Voi Sub County could not pass the test of fair labour practice.
On exhaustion of internal mechanisms, it is trite that such mechanism ought to be exhausted before the court’s jurisdiction is invoked as ordained by the provisions of section 9(3) of the Fair Administrative Action Act.
See in this regard NGO’s Coordination Board v E G & 4 others’ Katiba Institute (Amicus Curie) (2023) eKLR, Geoffrey Muthinja & 2 others v Samuel Muguna Henry & 1756 others (2017) eKLR, Republic v Commissioner General Kenya Revenue Authority Ex parte Sanofi Aventif Ltd, (2019) eKLR, Speaker of National Assembly v Karume (1992) eKLR, Secretary County Public Service Board & another v Hulbhai Gedi Abdille (2017) eKLR, Albert Chaurembo Mumba v Maurice Munyao & 148 others (2019) eKLR Dhow House ltd v Kenya Power & Lighting Co Ltd (2022) KEHC 4840 (KLR) and William Odhiambo Ramogi & 3 others v Attorney General & 4 others: Muslim for Human Rights & 2 others (Interested Parties) (2020) eKLR.
These decisions lay it bare that internal mechanisms must be complied with before the court’s jurisdiction is invoked. This doctrine ensures that there is postponement of judicial consideration of disputes as other mechanisms are pursued and many disputes are resolved at this stage.
However, the doctrine of exhaustion may be excepted in certain circumstances as held in Pamwhite Ltd v Karomo and Seinfert (Suing as the Chairman and Secretary respectively of the New Nyali Residents Association) & 4 others (2025) KECA 930 (KLR).
In William Odhiambo Ramogi & 3 others v Attorney General & 4 others (Supra), a five-judge bench held:
“…the jurisdiction of the courts to consider valid grievances from parties who lack adequate audience before a forum created by statute or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting court’s jurisdiction must be construed restrictively.”
See also Kenya Revenue Authority & 2 others v Doshi Iron Mongers Ltd (2024) KECA 640 (KLR) where the court held inter alia:
‘’However, in order for a legal provision relied upon to support the doctrine of exhaustion and constitutional avoidance to pass muster, it ought to meet certain tests and these are that the reliefs prescribed in the alternative forums must be available, effective and sufficient, and as set out in the decision of the African Commission of Human and People’s Rights in the case of Dawda K Jawara v Gambia ACMHRR 147/95-149/06 “.
“A remedy is considered available if the petitioner can pursue it without impendment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality]…”
In the instant suit, while the petitioner sought reconsideration of the transfer to Voi Sub County vide letter dated 16th April 2026, the petitioner had not received any communication by the time she instituted the instant suit as the letter dated 28th April 2026 informing the petitioner that her request would be tabled before the Deployment Committee in its next meeting was dispatched to ODPP Kajiado and received on 10th June 2026 and it is unclear as to whether the Deployment Committee had reviewed the petitioner’s appeal and advised the DPP yet the 14 days accorded to the committee had lapsed and the DPPs decision remained outstanding.
In the court’s view, the respondent’s submission that the petitioner had not exhausted internal mechanisms would have been stronger if the respondent had availed evidence of the dates on which the petitioner’s appeal was scheduled for reconsideration and a tentative date of the DPP’s decision. However, the position is different because no action has been taken since 16th April 2026, two (2) months later.
The court is at loss as the why the respondent transferred the petitioner to ODPP Voi Sub County with immediate effect yet her appeal filed a day after receipt of the letter of transfer had not been acted upon two months later. The court is not persuaded that the respondent would have acted expeditiously had the petitioner not filed the instant suit. In the courts view, the doctrine of exhaustion cannot avail the respondent in this instance.
For the above-mentioned reasons, the court is satisfied and finds that the petitioner’s application meets the threshold for the grant of conservatory orders.
The upshot of the foregoing is that the Respondent shall maintain the status quo prior to the letter of transfer dated 13th April 2026.
Second no adverse action shall be taken against the petitioner with respect to her employment and shall not be victimized, discriminated, threatened or subjected to disciplinary proceedings pending the hearing and determination of the instant petition.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 17TH DAY OF JUNE, 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 139 OF 20262 OF 25 |