https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1588

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT NAKURU ELRC PETITION NO. E024 OF 2023 (Before Hon. Lady Justice Anna Ngibuini Mwaure) CASMIR AUGUSTUS OBIERO ……….............….. …..PETITIONER VERSUS OFFICE OF THE DIRECTORATE PUBLIC PROSECUTION……………………………… RESPONDENT JUDGMENT Introduction 1. The Petitioner commenced this suit vide a Petition dated 8th December 2023 seeking the following orders that: a.A declaration that the actions and omissions of the Respondent in relation to the unfair labour practices and differential treatment meted on the Petitioner violated the fundamental rights and freedoms of the Petitioner under Articles 27(2), 41(1), 41(2), 47(1) & (2) of the Constitution. b. A declaration that Prosecution Counsels are entitled to Daily Subsistence Allowances when attending to mobile courts out of their duty stations. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 1 OF 34 c. An award of damages do issue, directing the Respondent to compensate the Petitioner for the constitutional violations. d.The Petitioner be compensated by way of damages for constructive dismissal by the Respondent due to the financial and psychological suffering inflicted on him in breach of his rights as enshrined in the Constitution of Kenya. e.An order of specific damages namely: i. Mobile courts attendance for two quarters - Kshs.28,000/= ii. August 2023 salary- Kshs.136,894/= iii. Transfer allowance from Kabarnet to Nakuru Kshs.69,394/= - iv. Transfer allowance from Nakuru to Kabarnet - Kshs.69,394 /= v. Transfer allowance from Nakuru to Iten Kshs.69,394/= - vi. Compensation for rent paid in Nakuru- Total Kshs.428,076/= Kshs.55,000/= ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 2 OF 34 f. This Honourable court be pleased to issue such further or other order(s) as it may deem just and expedient for the ends of justice. Petitioner’s case 2. The Petitioner avers that he was appointed as a Prosecution counsel II and he was posted to serve at Kabarnet Law Court in Baringo County from 1st March 2022. Despite the letter of appointment stating that he was to undergo an induction to properly equip him with the skills to undertake his duties, the same was never done. 3. The Petitioner avers that, as per the Respondent’s Human Resource Policies and Procedures Manual April 2022 Edition clause 3.5.3(i) induction is the first step welcoming new employees and starts from the first day when employees report to the office. 4. The Petitioner avers that he was immersed into the deep sea of prosecution by learning on job including 105 others, were invited for an induction on 26th November 2023 to 1st December 2023, more than one and half years later and more than two months after he had been employed and resigned respectively. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 3 OF 34 5. The Petitioner avers that induction is a vital component in the employment of a Prosecution Counsel, as it equips officers with fundamental prosecutorial skills both within and outside the courtroom, while also enlightening them on the operations of the Office of the Director of Public Prosecutions, as detailed in the Induction Programme for newly recruited Prosecutors 2023 Edition. 6. The Petitioner avers that while serving at Kabarnet Law Courts, he was assigned to prosecute criminal cases and, twice monthly, required to attend mobile courts at Marigat and East Pokot, situated 45 km and 97 km away respectively, for which he and other Counsels were paid Kshs.14,000/= per quarter in 2022. However, in 2023, although his colleagues were duly paid through the Authority to Incur Expenses (AIE) kitty of the Baringo County office, the Petitioner was excluded, thereby suffering discrimination contrary to Articles 10(2)(b), 41(2)(a), and 236(a) of the Constitution. 7. Despite formally reporting this differential treatment to the County Head, Baringo, Nakuru Regional Head, and the Deputy Director County Affairs & Regulatory ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 4 OF 34 Services at ODPP Headquarters, the Petitioner avers that no response was furnished, in violation of Article 47(1) of the Constitution. 8. The Petitioner further avers that while stationed at Kabarnet, he developed hearing complications due to adverse climatic conditions, sought treatment at Baringo County Referral Hospital, and was referred to Moi Teaching and Referral Hospital, Eldoret, where he commenced continuous medication. He duly notified the Respondent through letters dated 8th August 2022 and 7th December 2022, but only received a response seven months later, on 6th March 2023, indicating that his request would be considered by the Deployment Committee. 9. The Petitioner avers that his substantive transfer to Elgeyo Marakwet County was eventually effected on 16th June 2023, ten months after his initial request, amounting to inordinate delay and violation of his right to expeditious administrative action under Article 47(1) of the Constitution. To aggravate matters, the Rift Valley Regional Coordinator, by letter dated 4th April 2023, had earlier transferred him to Nakuru Regional Office, prompting him to relocate his ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 5 OF 34 family, rent a house, and enroll his child in school, only to be temporarily redeployed to Elgeyo Marakwet on 6th April 2023 without disclosure of duration. 10. The Petitioner avers that he reported to Iten on 2nd May 2023 but, upon complaining of the inconvenience, was abruptly redeployed back to Kabarnet on 9th May 2023, an arbitrary and capricious action devoid of reasonableness as required by Article 47(1). Despite complying, he incurred uncompensated losses, and on 16th June 2023 was again substantively transferred to Elgeyo Marakwet, where he reported on 1st August 2023. By then, his savings were depleted, frustrations compounded, and he could not effectively discharge his duties while supporting his family in Nakuru, leading him to resign on 4th August 2023, serving until 1st September 2023 and clearing on 11th September 2023. To date, he has not been paid his August 2023 salary, transfer allowances, mobile court allowances, airtime allowances, or issued a certificate of service. 11.The Petitioner emphasizes that Clause 4.10.18 of the Respondent’s Human Resource Policies and Procedures Manual entitles employees to transfer ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 6 OF 34 allowance equivalent to one month’s basic salary prior to departure, yet he was denied such allowances for transfers initiated by the Rift Valley Regional Coordinator, unlike his colleagues. 12.The Petitioner further avers that despite his resignation being acknowledged, he was erroneously listed for induction in November 2023, portraying him as serving both the ODPP and the Judiciary simultaneously, in breach of section 74 of the Employment Act. 13.The Petitioner thus contends that he was constructively dismissed through compounded frustrations, in violation of his rights to fair remuneration and reasonable working conditions under Article 41(2)(a) and (b), and seeks redress under Article 165(3)(b) of the Constitution. Respondents’ replying affidavit and further replying affidavit 14. The Respondent opposed the petition through two affidavits both sworn on 2nd July 2025. 15. In the Replying Affidavit by Hassan Abdi, the Acting Deputy Director of Public Prosecutions, the Respondent acknowledges that the Petitioner was ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 7 OF 34 employed on 14th March 2022 as Prosecution Counsel II and posted to Kabarnet Law Courts. He avers that as Regional Coordinator, he had authority to reassign counsel to ensure smooth court operations, including in Elgeyo Marakwet where there was a shortage. He admits issuing a redeployment letter on 4th April 2023, transferring the Petitioner to Nakuru, but states this was done inadvertently and corrected by a letter dated 9th May 2023 directing him back to Kabarnet. He disputes that the Petitioner’s claim of reporting to Nakuru, denies allegations of mistreatment, and notes that although the Petitioner gave notice of resignation, he actually left employment on 15th September 2023. He concludes that the petition is misconceived, filed in bad faith, and an abuse of court process. 16. In the further replying affidavit by Mediatrix Rapando, Head of Human Resource Management, the Respondent asserts that the Petitioner was properly inducted at Kabarnet through a “buddy system” and on-the-job training, with orientation scheduled for November 2023, though he had already resigned by September. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 8 OF 34 17.She denies exclusion from allowances, arguing that claims must be supported by documentation under Public Finance Management Regulations, which the Petitioner failed to provide. 18.She avers that his medical transfer requests were delayed because they were misaddressed to the Regional Head instead of HR, but were eventually considered by the Deployment Committee, resulting in his transfer to Elgeyo Marakwet in June 2023. 19. She disputes that the Petitioner reported to Nakuru, and emphasizes that transfer allowances are only payable upon reporting, and insists he was paid all dues, including the August 2023 salary, supported by vouchers and RTGS records. 20. She avers that in his resignation letter and exit questionnaire, the Petitioner praised ODPP as a good employer, suggesting the petition is an afterthought, and adds that airtime allowances depended on the availability of funds and grievances should have been pursued internally. She further contends that his resignation was linked to his appointment as a Magistrate. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 9 OF 34 21.Both affidavits therefore urge dismissal of the petition with costs, terming it misconceived and an abuse of court process. Petitioner’s further affidavit 22. The Petitioner, in his further affidavit dated 14th October 2025, rebutted the Respondent’s replying affidavit and further replying affidavit, where he reiterates that he was never inducted, was left to prosecute cases without guidance, and that the Respondent admitted no induction was conducted until November 2023, long after his resignation. 23. The Petitioner emphasizes that his colleagues were paid allowances while he was excluded without explanation, amounting to discrimination. 24. The Petitioner avers that his medical transfer requests of August and December 2022 were properly addressed to the Rift Valley Regional Head, received in good time, but delayed for ten months, violating his right to expeditious administrative action. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 10 OF 34 25. The Petitioner also avers that he physically reported to Nakuru on 8th May 2023, was rerouted to Elgeyo Marakwet the same day, and lodged complaints both regionally and at headquarters. 26.The Petitioner insists that redeployment letters entitled him to transfer allowances, yet none were paid, and that his August 2023 salary and mobile court allowances were withheld, with the Respondent misleading the court by attaching a July payslip instead. 27.The Petitioner avers that he worked until 1st September 2023, cleared on 4th September 2023, and resigned on 4th August 2023 due to frustrations, noting that his later appointment as Resident Magistrate came after resignation, not before. 28.The Petitioner emphasizes that he exhausted internal mechanisms, was subjected to arbitrary transfers, discrimination, and denial of entitlements, and therefore prays that the petition be allowed as filed. 29.Parties canvassed the Petition by way of written submissions. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 11 OF 34 Petitioner’s submissions 30. The Petitioner submitted that his constitutional rights were violated, specifically the rights to fair labour practices, fair administrative action, and freedom from discrimination under Articles 41, 47 and 27. He further contended that constructive dismissal and the claim for compensation arose only after his resignation, which was precipitated by the Respondent’s conduct during his employment. The Respondent, on the other hand, raises a preliminary objection asserting that the Petition is premature, arguing that the Petitioner failed to exhaust internal grievance mechanisms as provided under Section K of the ODPP Human Resource Policies and Procedures Manual, a document which has not been produced before this Court. 31. The Petitioner relied on the case of Nicholus v Attorney General & 7 Others; National Environmental Complaints Committee & 5 Others [2023] KESC 113 (KLR) on the exceptions to the doctrine of exhaustion that: - “That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 12 OF 34 rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 Others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated: “ In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.” We agree with the above reasoning and find that the availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief. This is because the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress. If the ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 13 OF 34 alternative remedy is deemed inadequate in addressing the issue at hand, then the court is not restrained from providing constitutional relief. But there is also a need to emphasize the need for the court to scrutinize the purpose for which a party is seeking relief, in determining whether the granting of such constitutional reliefs is appropriate in the given circumstances. This means that a nuanced approach to the relationship between constitutional reliefs for violation of rights and alternative means of redress, while also considering the specific circumstances of each case to determine the appropriateness of seeking such constitutional reliefs, is a necessary prerequisite on the part of any superior court.” 32. The Petitioner submitted that Section K of the Respondent’s Human Resource Policies and Procedures Manual reveals that the grievance procedure is designed as an internal dispute resolution mechanism for employees, dealing with matters such as pay and benefits, workload, working conditions, treatment by supervisors, or unfair treatment. The Petitioner argued that at the time of filing the petition, he was no longer an employee of the Respondent, and in any event, the issues before ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 14 OF 34 this court concern alleged violations of constitutional rights and freedoms, which cannot be confined to the internal grievance mechanism. 33.The Petitioner argued that the manual itself expressly recognizes that the grievance procedure is independent of both the disciplinary process and external justice systems. In addition, the Petitioner has demonstrated that during his employment he raised grievances in accordance with the manual first to his immediate supervisor, the Senior Assistant Director of Public Prosecutions in the Rift Valley Region, through letters dated 8th August 2022 and 4th August 2023, and later by a complaint dated 8th May 2023 copied to other senior officers and actioned to Human Resource Manager on 15th May 2023, though no remedy was provided. It is therefore his submissions that he duly followed the grievance procedure, but the Respondent’s manner of handling his complaints precipitated his resignation, thereby necessitating this petition. The Petitioner urged this Court to disregard the objection and proceed to determine the petition on its merits. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 15 OF 34 34.On the violation of the Petitioner’s rights, the Petitioner relied on the case of Husus Mugiri v Music Copy Right Society of Kenya & another [2018] KEHC 2074 (KLR) the court stated as follows: “In order for a petition to qualify to be a constitutional petition that seeks to enforce or protect fundamental rights and freedoms under the bill of rights, it must meet the test set in Anarita Karimi Njeru vs. Republic [1979] eKLR. That is, the applicant must specify which specific provisions of the Constitution that declare the rights, the specific rights and freedoms that have been or are threatened to be infringed or violated and the manner in which the respondent has infringed the subject rights. This position has been reiterated time and again.” 35. The Petitioner relied on Article 10 of the Constitution which enshrines non-discrimination as a national value and principle of governance, while Article 27(1) and (2) of the Constitution guarantees equality before the law and equal protection and benefit of the law, including the full ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 16 OF 34 and equal enjoyment of rights and fundamental freedoms. In the same vein, section 5 of the Employment Act prohibits discrimination in employment, requiring employers to promote equal opportunity and eliminate discrimination in recruitment, training, promotion, terms and conditions of employment, and termination. It further obligates employers to pay equal remuneration for work of equal value and criminalizes contravention of these provisions. Importantly, in proceedings where discrimination is alleged, the burden of proof rests upon the employer to demonstrate that no discrimination occurred and that any act or omission was not based on the prohibited grounds. 36. The court in Rose Wangui Mambo & 2 others v Limuru Country Club & 17 Others [2014] KEHC 7683 (KLR) adopted the definition of discrimination as articulated in Peter K. Waweru v Republic [2006] eKLR which defined discrimination as follows: “…Discrimination means affording different treatment to different persons attributable wholly or mainly to their ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 17 OF 34 descriptions by…sex 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” 37.The Petitioner argued that he together with other prosecutors, was assigned duties at Kabarnet Law Courts and mobile courts in Marigat and East Pokot, situated 45 km and 97 km away respectively. Throughout 2022, he received remuneration for attending these mobile courts, but such payments were abruptly halted at the end of that year without justification, even though his colleagues in the same job group continued to be paid in 2023. Despite raising the issue with the Respondent, no corrective action or explanation was provided, although he remained on the duty roster and cause list. The Respondent, in its further replying affidavit, does not ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 18 OF 34 deny that the Petitioner was assigned mobile court duties, nor does it adduce proof of remuneration. In the circumstances, the failure to accord equal treatment to the Petitioner, while his colleagues were remunerated for similar work, amounted to discrimination and a violation of his constitutional right to equality under Article 27 of the Constitution. 38. The Petitioner submitted that Article 47 of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. Section 2 of the Fair Administrative Action Act further defines administrative action to include any act, omission, or decision of a person, body, or authority that affects the legal rights or interests of another. In the same vein, Article 41 of the Constitution secures the right to fair labour relations, encompassing reasonable working conditions and fair remuneration. Together, these provisions underscore the Petitioner’s claim that the Respondent’s conduct amounted to a violation of his constitutional rights. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 19 OF 34 39.The Petitioner relied on Judicial Service Comission v Mutava & Another [2015] KECA 741 (KLR) where the Court of Appeal stated as follows: “Although it is applicable to administrative decisions, it is apparently limited in scope in contrast to right to fair administrative action under article 47(1) as the latter encompasses several duties – duty to act expeditiously, duty to act fairly, duty to act lawfully, duty to act reasonably and, in the special case mentioned in article 47(2), duty to give written reasons for the administrative action. The duty to act lawfully and duty to act reasonably refers to the substantive justice of the decision whereas the duty to act expeditiously, efficiently and by fair procedure refers, to procedural justice.” 40.The Petitioner submitted that the Respondent’s conduct amounted to a breach of his constitutional and contractual rights. He was subjected to haphazard redeployments across counties without compensation, including being returned to Kabarnet despite his deteriorating hearing condition, thereby violating his constitutional right to fair labour relations and ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 20 OF 34 reasonable working conditions under Article 41. His medical transfer request was only acted upon ten months later, undermining his right to health and fair administrative action under Article 47. The Respondent’s actions were unfair, unlawful, unreasonable, and inefficient. 41.Applying the principles of constructive dismissal as set out in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), the Petitioner argued that the Respondent’s repeated transfers, failure to induct him, denial of allowances, and disregard for his health created intolerable working conditions amounting to repudiatory breach. He contended that his resignation on 4th August 2023 was directly caused by these frustrations, not by his later appointment as a magistrate. The Petitioner therefore submits that he was constructively dismissed and is entitled to reliefs under Article 23 of the Constitution, including declarations of rights and compensation. 42. The Petitioner submitted uncontroverted facts: discriminatory denial of mobile court allowances, unreasonable transfers disregarding his health and ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 21 OF 34 family, constructive dismissal through intolerable conditions, and refusal to remit terminal dues. 43.The Petitioner prays that the court cures the injustice by allowing the petition and granting the reliefs sought. Respondent’s submissions 44.The Respondent submitted that the claim for daily subsistence allowances was unproven, arguing that under Regulation 93 of the Public Finance Management (National Government) Regulations, 2015, such allowances are payable only upon proper surrender and accounting of imprest with supporting documentation, which the Petitioner failed to demonstrate. The Respondent relied on Clause 4.10.18(iii)(b) of the ODPP Human Resource Policies and Procedures Manual, which expressly bars payment of transfer allowances to employees posted temporarily for less than three months, contending that the Petitioner never reported to Nakuru and is therefore ineligible. On airtime allowances, the Respondent submitted that these are dependent on the availability of funds and were not ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 22 OF 34 payable in the months claimed, hence no discrimination occurred. 45. On the doctrine of ripeness, the Respondent submitted that the petition is speculative and premature, urging the court not to embark on a determination of constitutional violations before any justiciable issue has crystallized. The Respondent argued that judicial power should not be exercised where no actual dispute exists, and that the Petitioner failed to demonstrate with certainty how his rights were violated or threatened. This position is anchored in the principle that courts should only intervene where there is a clear, ripe controversy, not hypothetical grievances. 46. On the doctrine of exhaustion of remedies, the Respondent relied on Black’s Law Dictionary (10th Edition), which defines exhaustion as the requirement that “if an administrative remedy is provided by statute, claimants must seek relief first from the administrative body before judicial relief is available.” The Respondent argued that Section K of the ODPP Human Resource Policies and Procedures Manual provides a grievance mechanism for employee ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 23 OF 34 complaints regarding pay, workload, working conditions, and unfair treatment, which the Petitioner failed to use. To reinforce this, the Respondent relied on the cases of Robert Khamala Situma & 8 others v Acting Clerk Nairobi County Assembly [2022] eKLR, where the court stressed adherence to statutory grievance mechanisms; followed by William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others [2020] eKLR, where a five-judge bench reiterated that exhaustion ensures diligence in protecting one’s interests within available mechanisms before turning to the courts; R v Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya & 6 others [2017] eKLR, where the High Court emphasized that exhaustion is of “esteemed juridical lineage” in Kenya; and finally Speaker of the National Assembly v Karume [1992] KLR 21, which held that where a clear procedure for redress is prescribed by law, it must be strictly followed. 47. In conclusion, the Respondent maintains that the petition is an afterthought, unsupported by material ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 24 OF 34 evidence, and that it offends the doctrines of ripeness and exhaustion. The Respondent urge the court to dismiss the petition with costs, as no constitutional breach has been proved. Analysis and determination 48.The court has considered the pleadings herein together with the rival submissions; the issue for consideration is whether the rights of the Petitioner were unfairly violated and secondly, is he entitled to the reliefs sought? 49. In Coca Cola East & Central Africa Limited v Maria Kagai Ligaga(Supra) the Court of Appeal set out the principles for constructive dismissal as follows: a.The fundamental or essential terms of the contract of employment. b.Whether there is a repudiatory breach of the fundamental terms of the contract through conduct of the employer. c. The conduct of the employer had to be a fundamental or significant breach going to the root of the contract of employment or which showed that the employer no longer intended to be bound by one or more of the essential terms of the contract. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 25 OF 34 d.An objective test is to be applied in evaluating the employer’s conduct. e.There has to be a causal link between the employer’s conduct and the reason for employee terminating the contract. f. An employee could leave with or without notice so long as the employer’s conduct was the effective reason for termination. g.The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach. h.The employee has to be within a reasonable time, the employment relationship pursuant to the breach. i. The burden to prove repudiatory breach or constructive dismissal is on the employee. j. Facts giving rise to repudiatory breach or constructive dismissal were varied. 50.In Leena Apparels (EPZ) Limited V Nyevu Juma Ndokolani [2018] KECA 308 (KLR), the Court of Appeal held as follows: “……………….. Whenever an employee alleges constructive dismissal, a court must evaluate if the conduct of the employer was such as to constitute a repudiatory breach of the contract of employment. The ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 26 OF 34 employer’s conduct does not have to be intentional or in bad faith before it can be repudiatory……………….” “In order for a claim for constructive dismissal to succeed where the Court applies the contractual test, it must be concluded that the employer’s conduct or unilateral change, constitute a breach of the contract of employment, and second if it is constitutes such a breach, it must be found to substantially alter an essential term of the contract.” 51. In Geoffrey Muriithi Muthee V XPLICO Insurance Co. Limited [2022] KEELRC 595 (KLR) the court stated as follows: “From the onset, it is imperative to state that constructive dismissal does not have any statutory anchorage within the Employment Act, 2007 or any of our statutes. It is a creature of Common Law. It is trite law that where an employer’s conduct evinces an intention no longer to be bound by the contract of employment, a path gets available to the employee to either accept the conduct or changes made by the employer or treat the conduct or changes as a repudiation of the ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 27 OF 34 contract by the employer and sue for wrongful dismissal.” 52. In the instant case, it is undisputed that the Petitioner was appointed as Prosecution Counsel II by letter dated 7th February 2022 and subsequently posted to Kabarnet Law Courts on 1st March 2022. He undertook his duties without formal induction until 26th November 2023, nearly one year and eight months later. While stationed at Kabarnet, he also served at Marigat and East Pokot mobile courts, where he was entitled to travel allowances that were not paid. During this period, he developed hearing problems, prompting a series of transfers from Kabarnet to Nakuru, then to Iten, back to Kabarnet, and later again to Iten, where he eventually resigned. The Respondent, however, maintains that the Petitioner was duly appointed and posted to Kabarnet, that the redeployment to Nakuru was a clerical error promptly corrected, and that he was properly inducted, paid all dues, and eventually transferred to Elgeyo Marakwet after his medical requests were considered. They dispute that he never reported to Nakuru, emphasize that transfer allowances are payable only upon reporting, and ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 28 OF 34 insist that documentation required under the Public Finance Management Regulations was not provided. They further highlight that in his resignation documents the Petitioner praised ODPP as a good employer and argue that grievances ought to have been pursued internally, and so contends that his resignation was linked to his appointment as a Magistrate. Overall, the Respondent characterizes the petition as misconceived, an afterthought, and an abuse of the court process. 53. As summarised hereinbefore, the court concedes the Petitioner was treated unfairly by the Respondent. The court was informed the Petitioner was not inducted to his job. He was given a crucial job for prosecution of cases. It is hard to fathom how the Respondent expected him to deliver without induction. That was a recipe for failure. Indeed, induction was done sometime in December 2023 long after he had resigned from his employment in August 2023. 54. Then the Petitioner describes how he was posted to Kabarnet Law Courts on 1st March 2022 and he served Marigat and East Pokot at the same time. He ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 29 OF 34 says he never received travel allowance during that period he served three stations. He was then transferred to Nakuru, Iten and back to Kabarnet and to Iten. He resigned while at Iten. All this back and further is quite ridiculous and there is no explanation why one employee had to be put through so much. Clearly, this whole debacle could cause any human being to be frustrated and take contrary steps. It can be well understood why he chose to resign. It is only fortunate he secured another job with the Judiciary. 55. The Petitioner avers he then got sick and he wrote to the Respondent. He only got a response on 6th March 2023 informing him his letter would be tabled before a Committee for consideration. He had written a letter on 8th August 2022 requesting for deployment near Moi Teaching and Referral Hospital because of his health. He was finally transferred to Elgeyo Marakwet on 16th June 2023 to be near the said hospital. In the process of all these, he was transferred to Nakuru on 4th April 2023 and he settled his family in Nakuru. ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 30 OF 34 On arrival to Nakuru he realised he was deployed to Elgeyo Marakwet in Iten. 56. The court has acutely considered the pleadings of the Petitioners and of the Respondent and their respective submissions and court finds strong evidence that the Petitioner was treated wrongly by the Respondent. Indeed, his rights to fair labour practice were violated. His resignation was clearly not voluntary or in good faith because of what he was put through. 57. The Petitioner’s resignation amounted to constructive dismissal and the provisions of COCA COLA & CENTRAL AFRICA -VS- MARIA KAGAI LIGAGA (SUPRA) are of support of this case on ingredients of constructive dismissal. 58. The court therefore finds the Petition by the Petitioner is merited and the following declarations are: - (1) A declaration that the actions and omissions of the Respondent in relation to the unfair labour practices and differential treatment meted on the Petitioner violated the fundamental rights and freedoms of the Petitioner ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 31 OF 34 under Articles 27(2), 41(2), 47(1) &2 of the Constitution of Kenya. (2) The Petitioner be compensated by way of damages for constructive dismissal amounting to unfair and wrongful termination even though he resigned. (3) For unfair termination the Claimant worked for the Respondent for about one year. He is awarded 3 months equivalent of his salary as compensation for unfair and wrongful termination – 3 X Kshs.69,394 - Kshs.208,182/= (4) Compensation for constitutional violations as already declared - Kshs.500,000/= (5) Further, Petitioner is awarded: - i. Mobile courts attendance for two quarters - Kshs.28,000/= ii. August 2023 salary - Kshs.69,394/= iii. Transfer allowance from Kabarnet to Nakuru - Kshs.69,394/= iv. Transfer allowance from Nakuru to Kabarnet - Kshs.69,394/= ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 32 OF 34 v. Transfer allowance from Nakuru to Iten - Kshs.69,394/= 59. Court will not award Acting allowance as it is not proved and not clear of the justification. 60. Also, compensation for rent paid in Nakuru is not proved and is declined. 61. Each party will meet their respective costs of the Petition. 62. Interest will accrue at 14% per annum from date of judgment till full payment. Total award is Kshs.1,013,758/= Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 12th Day of June, 2026. ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 33 OF 34 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. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE ELRC PETITION NO. E024 OF 2026 JUDGMENT PAGE 34 OF 34