https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1662

Kivali v Kambaga & 3 others (Petition E141 of 2026) [2026] KEELRC 1662 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1662 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E141 of 2026 M Mbarũ, J June 18, 2026 Between Josephine Musenya Kivali Petitioner and Vivian Kambaga 1st Respondent Alloys Kemo 2nd Respondent Vincent Monda 3rd Respondent Office of the Director of Public Prosecutions 4th Respondent Ruling 1.The petitioner filed an application dated 4 May 2026 under the provisions of Article 22, 23, 47 and Article 159 (2)(b) and Rule 4, 10, 13, 19, 20 & 23 of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules and seeking Orders:1.Spent.2.Spent.3.pending the hearing and determination of the Application/Petition, this Court be pleased to issue Conservatory Orders directing the 4th Respondent to designate the Petitioner/Applicant to serve at a station within the Nairobi Region of the Office of the Director of Public Prosecutions, such designation to be communicated in writing within seven (7) days of the Order, without prejudice to the Petitioner’s substantive rights, seniority, emoluments, or benefits;4.Further and in the alternative, this Court be pleased to issue a Conservatory Order maintaining the status quo ante, directing that the Petitioner/Applicant shall continue to serve at Kajiado Station and the Respondents be directed not to directly or indirectly discriminate and/or interfere with the Petitioner/Applicant’s discharge of duties at Kajiado Station pending the hearing and determination of the Petition;5.Pending the hearing and determination of the Petition, this Honourable Court be pleased to issue a Conservatory Order restraining the Respondents from threatening or commencing any disciplinary proceedings against the Petitioner/Applicant arising from the matters herein or taking any adverse action against the Petitioner/ Applicant’s emoluments, allowances, benefits, seniority, or conditions of service and subjecting the Petitioner to victimisation, discrimination, or hostile treatment in connection to this Petition;6.The Court be pleased to grant such further or other orders as it may deem just and fit;7.The costs of the suit are to be provided for. 2.The petitioner filed the Supporting Affidavit and avers that she is currently on her Annual Leave and is not eligible for transfer, having been transferred to Kajiado Station only in January 2024. The Transfer neither falls within the ambit of the various types of Transfers stipulated in Section 6 of the ODPP Deployment and Transfer Policy nor within the HR Policy, thereby not justifying the urgency of the proposed Transfer. 3.The petitioner avers that the Respondents have irregularly transferred her, contrary to the ODPP’s Deployment and Transfer Policy, in clear violation of the Fair Administrative Action and various provisions of the Constitution. The immediate transfer of the Petitioner from Kajiado Station to Winam Law Courts in Kisumu County without the requisite notice, consideration, justification or circumstances leading to the proposed immediate transfer shall hurt the Petitioner’s Minor School-going children, thereby occasioning unnecessary inconvenience, distress and undue suffering on the Petitioner. Such will be detrimental to the objective and the very principles governing Deployment and Transfer, which the Respondents have ignored, failed and refused to provide feedback on the Petitioner’s request for Transfer Reconsideration within the requisite period. 4.In the affidavit, the petitioner avers that her annual leave ends on 5 May 2026, and that she shall be highly prejudiced and cited for disciplinary action, subject to the freezing of salary and benefits, should she fail to report to the proposed new station. The Transfer having been made with immediate effect, the petitioner stands to suffer prejudice and inconvenience. It denotes the immediate relocation of all matters relating to the Petitioner, including her pay point, Supervising Officer, and any matters arising after the proposed transfer from Kajiado Station Winam Law Court. 5.The Transfer is devoid of the Deployment and Transfer Policy procedures; it lacks transparency, integrity, accountability, consideration, and independence, an affront to the Petitioner’s rights to Fair Administrative Action, in clear violation of the Constitution, good governance, and the rule of law; therefore, null and void. 6.Unless the orders sought are issued, the petitioner stands to be cited for disobedience of lawful instructions and absconding from duty, likely to suffer prejudice. She stands to face discrimination in the general discharge of her duties, subsequent transfers, and future promotions should the Respondents’ irregular actions be left unchallenged. 7.In reply, the respondents filed Grounds of Opposition. The grounds are:1.The Petition, the basis of the instant application, and the application itself are nonjusticiable, as the Petitioner/Applicant is yet to exhaust the internal dispute resolution mechanism, which she already admittedly triggered.2.The Petitioner/Applicant has not met the threshold for the grant of any of the conservatory orders sought vide the instant application.3.More specifically, the Petition has no chances of success but instead has high chances of being struck out; thus, the application does not meet the threshold of the Petition being rendered nugatory, and cannot therefore succeed.4.Some of the prayers sought, including prayer 3 thereof, are substantive in nature and cannot be issued at the preliminary stage without hearing the parties on the merits.The parties attended and made oral submissions on the application. 8.The petitioner submitted that she seeks to stop her immediate transfer from Kajiado Station to Winam Law Courts in Kisumu County, without the requisite notice, consideration, or justification, and without the circumstances leading to the proposed transfer being disclosed. Her basis is that such transfer and movement shall hurt the Petitioner’s Minor School-going children, thereby occasioning unnecessary inconvenience, distress and undue suffering on the Petitioner. 9.The respondents submitted that the petitioner has not exhausted the internal mechanisms available to address this case properly, and that moving to court is premature. The petition, as couched, fails the threshold of a proper constitutional petition and should be addressed as a normal suit, and hence has no merit and should be dismissed. Determination 10.The petitioner's application seeks a conservatory order preventing the 4th respondent from transferring her from the Kajiado office to the Winam Law Court. She further seeks to be deployed to a station within the Nairobi Region of the ODPP, rather than to the current office of transfer communicated on 5 May 2026. This is to allow her to support her minor children as they go to school. The basis is that she was transferred in January 2024, and the current movement to another station is immediate and not justified under the 4th respondent policy.Employers have the prerogative to reorganise their workforce, including employees. However, the exercise of this managerial prerogative is not absolute and may be subjected to legal challenge under certain circumstances. 11.The petitioner contends that the 4th respondent, in effecting her transfer, has not adhered to the existing policy. Her concern is largely that the new movement will affect her school-going children. 12.The petitioner has not denied that she has commenced internal mechanisms to address the matter. Indeed, internal transfers of employees from one workstation to another are largely at the employer's discretion, subject to the employee being given reasonable notice. 13.Whereas the petitioner contests her transfer from the Kajiado office to the Winam Law Court, she proposes a transfer to a station near Nairobi. 14.In Kiruy & 64 others [2026] KEELRC 1179 (KLR), the court considered the width and length of the employer’s prerogative to reorganise its employees. It held that, under such circumstances, the court should rarely intervene unless the employee’s rights are likely to be adversely affected. This position is reiterated in Kenya Union of Commercial Food and Allied Workers v London Distillers (K) Ltd [2026] KEELRC 989 (KLR), where the court held that the transfer of an employee from one office to another is lawful and constituted a legitimate exercise of managerial prerogative. The court held that transfers within an organisation are permissible, provided they do not alter the essential terms of employment, noting that the employee’s salary, benefits, and designation remained unchanged. 15.The safeguard for the employee is that there is reasonable notice to accept the transfer from one office to the next. Upon notice, the employee should organise her personal affairs and obey the employer's lawful orders and directions. Failure to attend as directed, where appropriate notice has been issued, is abscondment of duty contrary to section 44 of the Employment Act, as held in Okindi v Kenya Maritime Authority [2025] KEELRC 174 (KLR), that a transfer from Mombasa to Lodwar would not deny the employee the essential services required for the performance of assigned duties. 16.In the case of Severine Luyali v Ministry of Foreign Affairs & International Trade & 3 others [2014] KEELRC 754 (KLR), the court held that the employee was entitled to reasonable notice, taking into account that she was deployed in a foreign country, and a time of 3 months to relocate back home was sufficient notice. 17.In Simeon Kiprotich Langat v Kenya Ports Authority & Commission on the Administration of Justice (Office of the Ombudsman) [2017] KEELRC 217 (KLR) the court held that although transfers, relocation and recall are allowed and within the prerogative of the employer, the same must be exercised within a context that is valid and reasonable based on the legitimate expectation of the officer subject to such measures. However, the employee cannot refuse to take a transfer simply because the station of posting is not to her liking. Taking the position that the new station is not convenient for school-going children ignores the context of the employment relationship. This is between the employer and employee. 18.In this case, the petitioner was transferred from her station by a letter dated 13 April 2026, effective 5 May 2026. This was during her annual leave, which the 4th respondent had approved. 19.The petitioner sought a review of the transfer, as set out in a letter dated 20 April 2026. This confirms that she became aware of the transfer notice and actioned it by submitting an application for review. 20.During the hearing of the application in court on 20 May 2026, the petitioner, through her counsel, confirmed that she had not reported to the station of transfer and was not in the previous station of deployment. The reason was that she was waiting for the court's directions. 21.Upon moving the court with her application and Certificate of Urgency, the court directed the parties to proceed and address the application. No interim orders were issued stopping the transfer.Hence, since 5 May 2026, the petitioner has not been in the employer's service. There are no orders allowing her to leave work. 23.Such a standpoint only leaves the petitioner in conflict with the law. Instead of mitigating her position and reporting to the office to address the internal procedures for a review of the request against the transfer notice, the petitioner opted to stay at large. This is not an employee capable of taking instructions and lawful direction of the employer or the court. 24.The petitioner moved the court by way of a constitutional petition. The gist of the matters set out in the petition is for an ordinary suit that can well be addressed in a Memorandum of Claim filed under Rule 10 of the Employment and Labour Relations Court (Procedure) Rules. The needless invocation of a constitutional petition route is unnecessary. 25.This is not a proper petition, as the respondents' Grounds of Opposition assert. See Korir v Director of Occupational Safety and Health Service (Nairobi Headquarters) & 2 others [2026] KEELRC 1308 (KLR) and Sumayya Athmani Hassan v Paul Masinde Simidi & Another [2019] KECA, where the courts have held that employment and labour rights under the constitution are now legislated under the Employment Act and the Labour Relations Act, and where the statute gives a mechanism to urge an employment dispute, there should be constitutional avoidance. Unless the petitioner asserts that the law giving a right is not sufficient, the invocation of a constitutional petition is unnecessary. 26.In this case, the petition herein is unnecessary. The petitioner would have well addressed her case through a Memorandum of Claim. 27.Regarding costs, the analysis above, this not being a proper petition, the cited persons in the 1st to 3rd respondents being unnecessary parties, they are awarded costs. 29.Application dated 4 May 2026 is without merit and is hereby dismissed with costs. This is not a proper petition and is hereby dismissed. The petitioner shall meet costs due to the 1st, 2nd and 3rd respondents. The 4th respondent to meet its costs. DELIVERED IN OPEN COURT AT NAIROBI, THIS 18TH DAY OF JUNE 2026.M. MBARŨJUDGEIn the presence of:Court Assistants: Nelson Kemboi and Catherine Makau……………………………………………… and………………….…………………………...