Court orders ODPP to pay prosecutor Sh1.8m for malicious transfer

The High Court in Nakuru has directed the Office of the Director of Public Prosecution (ODPP) to pay Sh1.8 million to a prosecutor who resigned over frustration after being transferred five times within 19 months.

Justice James Rika said the ODPP violated the rights of Casmir Obiero, a prosecution counsel, who was initially posted to Baringo County before being transferred five times in a row.

The judge said that Obiero's resignation amounted to constructive dismissal.

Obiero was employed as a prosecution counsel on February 7, 2022, and resigned on September 4, 2023.

• .

  Keep Reading

• 
  ARA loses bid to seize property of high-ranking Somali diplomat
• 
  Kihika is an American, petitioner tells court
• 
  Matiang'i's 2027 bid threatens Ruto and Raila's grip on Gusii
• 
  Court orders Kenya Hospital Funeral Home to release body detained over Sh0.5m bill

He was transferred from Baringo County to Elgeyo Marakwet County then to Nakuru County back to Elgeyo Marakwet and to Baringo County and back to Elgeyo Marakwet.

Justice Rika said that the irrational transfers, withholding of transfer allowances, and refusal to pay him Mobile Court allowances while his colleagues were paid, and the deprivation of his right to induction at the outset, all amounted to unfair labour practices and were discriminatory.

“The irrational transfers, withholding of transfer allowances, the refusal to pay him Mobile Court allowances while his colleagues were paid, and the deprivation of his right to induction at the outset, all amounted to unfair labour practices, and were discriminatory,” said Justice Rika.

The judge said the ODPP's conduct towards Obiero amounted to a repudiatory breach and created an adverse environment, which made it difficult for him to discharge his contractual role.

The judge noted that the ODPP’s explanation that transfer to Nakuru was inadvertent was a disguise for a decision that was unreasonable and inhumane, and perhaps actuated by malice and bad faith.

He said that ODPP's decision was not a prerogative that was exercised fairly and objectively.

The judge said ODPP was not responsible for its administrative acts, by advising Obiero that his transfer to Nakuru, which compelled him to relocate his family.

Justice Rika said it was not responsible for delaying his induction, and inviting him for induction, when he was already an ex-employee.

“The respondent (ODPP) shall pay the petitioner (Obiero) damages for constitutional violations at Sh750,000, damages for constructive dismissal at Sh750,000, and mobile court allowance at Sh28,000, August 2023 salary at Sh136,894, and transfer allowances at Sh208,182,” said Rika.

The judge held that the ODPP violated Articles 27, 41, and 47 of the Constitution.

Obiero argued that his resignation was prompted by the depletion of finances by the time he went back to Elgeyo Marakwet and could no longer sustain himself and his family in Nakuru.

Obiero said that when he reported to Nakuru, he was told that there was no role for him there and his transfer was a mistake.

The prosecutor said he was redeployed to Elgeyo Marakwet County and wrote to his superiors, complaining about the peripatetic transfers, but the Rift Valley Regional
The coordinator wrote to him, advising that the transfer to Nakuru was inadvertent.

Obiero said he was initially stationed at Kabarnet Law Courts, Baringo County and became ill on account of harsh weather conditions at Baringo and was treated at Eldoret hospital.

He was transferred to Elgeyo Marakwet County upon his request, but was shortly transferred to Nakuru Regional Office.

Obiero said that right from the beginning, the ODPP displayed signs of repudiatory breach by declining to take him through induction, before setting him off, on the perilous prosecutorial role.

The former prosecutor accused the ODPP of discriminating against him and refusing to pay him allowances for covering mobile courts while paying his colleagues.

Obiero said that the ODPP mishandled him right from the start and derailed his development, assignment, and career.

He said that while stationed at Kabarnet Law Courts, he was required to attend to cases in mobile courts twice a month in Marigat and Elgeyo Marakwet Courts, 45km and 97km away from his station.

The ODPP failed to file a response to the petition.