A prosecutor has won a case against her employer, the Office of the Director of Public Prosecutions (ODPP), after the Employment and Labour Relations Court (ELRC) quashed a transfer letter issued to her.
This was after a declaration, by the ELRC, that the transfer letter transferring Ms Pamela Venda from ODPP Kajiado to ODPP Voi Sub County was unfair.
The ELRC, sitting in Nairobi, also issued a declaration that the respondent’s (ODPP) failure to take into consideration the petitioner’s (Ms Venda) children was unlawful.
It also issued a declaration that issuance of the transfer letter during the petitioner’s approved leave without prior notice was unreasonable.
The court ruled that the letter of transfer was written when Ms Venda was on annual leave thereby violating ODPP’s Deployment and Transfer Policy (DTP).
“Secondly and puzzling, the petitioner was accorded no notice to report to the new station, a distance of 329 km by road about five and half hours. The reporting was immediate,” said the ELRC.
The ELRC further directed the ODPP to transfer or deploy the petitioner to a station within reasonable commuting distance of Nairobi for the remainder of the year 2026.
It also noted that a paragraph on the letter of transfer was in breach of the DTP on adequate notice for an employee to plan for his/her family including schooling for children, if any.
“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,” ruled the ELRC.
It also noted that apart from deployment from Ngong Law Courts to ODPP Kajiado, which was with immediate effect, in earlier three deployments to ODPP Nairobi, the petitioner was accorded time to move, yet the 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,” ruled the ELRC.
The ELRC said that transfer of employees is no longer a secret or winning card by the employer owing to societal dynamics and vicissitudes of life.
It also ruled that 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,” ruled the ELRC.
The ELRC ruled that prosecutorial, judicial and administrative processes including parliamentary are not emergencies, they are flexible and adjustable, so should be the transfer of employees.
“Perhaps what made the petitioner’s transfer extra ordinary is because it did not fall under any of the categories of transfer under the ODPP’s DTP, was unexpected, effected during approved annual leave and reporting was immediate notwithstanding the fact that the new workstation was far away where daily commute would not be possible,” ruled the ELRC.
The ELRC said that all that the employer was required to do was to accord the petitioner reasonable notice in consonance with its DTP.
It further said that terms of transfer or deployment are an essential part of working conditions of an employee and fall under the rubric of labour practices which the constitution requires to be fair.
“The petitioner's 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,” ruled the court.
The ELRC said that failure by the ODPP to comply with its DTP and consider the interests of the petitioner’s children as prescribed by provisions of section 43 of the Public Service Commission Act rendered the petitioner’s transfer unfair.
In her petition, Ms Venda alleged violation of constitutional rights in relation to the transfer from the ODPP Kajiado office to the ODPP Voi Sub County vide letter dated April 13, 2026, which she characterized as unlawful, unconstitutional, arbitrary, punitive and a violation of protected rights.
She contended that the transfer was effected when she was on leave without prior notice, before the prescribed minimum four years of service at her current station and without genuine operational justification.
Ms Venda told the court that since joining the ODPP she had served diligently rising to the position of Principal Prosecution Counsel.
The ODPP opposed the petition arguing that it had not met the threshold for the grant of the orders sought.
It argued that the transfer to Voi-Sub-County was effected in accordance with its Human Resource Policy and Procedures and the DTP to provide services to all regions of the country in view of the workload to ensure access to expeditious delivery of prosecution services.
The ODPP also argued that a clause of the transfer policy vested the right to reduce or enhance the number of officers working in a particular station in the DPP, the minimum four years’ service at a station notwithstanding.
The respondent also argued that the petitioner was promptly informed of the transfer to Voi, she had served in Kajiado for five years and the paramount consideration in a deployment or transfer was efficient, effective and fair delivery of prosecution services.
It also said that the transfer was undertaken to provide resources to meet identified staffing needs, enhance integration and improve service delivery.
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