Chief Inspector Naftal Ombaso Ontita v National Police Service Commission & 6 others

TRANS NZOIA COUNTY………………………..…….5TH RESPONDENT THE SUB-COUNTY POLICE COMMANDER ENDEBESS…………………………..6TH RESPONDENT THE ATTORNEY GENERAL………………………...7TH RESPONDENT JUDGMENT 1. The Claimant is an employee of the 1 st Respondent, currently serving as Chief Inspector of Police stationed at Endebess SubCounty Police Station. 2. The 1st Respondent is an independent constitutional body tasked with recruitment, overseeing human appointments, resource promotions, management, transfers, and disciplinary control within the National Police Service. 3. The 2nd Respondent is the head of the National Police Service. 4. The 3rd Respondent is the head of the Kenya Police Service. 5. The 4th Respondent is the head of the National Police Service Rift Valley Region. KTL ELRC CAUSE NO. E003 OF 2026 2 JUDGMENT

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6. The 5th Respondent is the head of the National Police Service Trans-Nzoia County 7. The 6th Respondent is the Police Commander in charge of Endebess Sub-County. 8. The 7th Respondent is the legal adviser of the Government of Kenya and other Government bodies. 9. The Claimant instituted the Statement of Claim herein dated 19th March 2026 seeking the following orders:i. An Order Respondents of injunction jointly and do issue severally restraining from the releasing, transferring and or deploying the Claimant at Kapu Sub County Headquarters Sop Eldoret Airport. ii. Any Order directing the Respondents that while making an Order for transfer of the Claimant, due regard and consideration of his family health and attention be given priority so that the Claimant is able to multi task. iii. Any other relief this Honourable court may deem fit to grant in the interest of justice iv. Costs of this claim KTL ELRC CAUSE NO. E003 OF 2026 3 JUDGMENT

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10. The Claimant avers that on 10 th January 2020, he applied for a transfer from the National Police College Main Campus, Kiganjo, to Kimilili Police Training College due to health challenges affecting his family. That the application was approved, and he was subsequently transferred to Trans Nzoia County, under the command of the 3rd Respondent, to enable him take care of his ailing wife. 11. It is the Claimant’s case that while he was serving in Trans Nzoia County, his wife suffered several miscarriages before giving birth to their son, George Ontita, who suffers from diabetes and requires the Claimant’s close attention. 12. The Claimant asserts that, on 23rd January 2026, the 3rd Respondent ordered his transfer from Endebess Sub-County Headquarters in Trans Nzoia County to the Kenya Airports Police Unit (KAPU), Eldoret Airport, without due regard to his family’s health circumstances. 13. He contends that, on diverse dates between 23 rd January 2026 and 16th March 2026, he invoked the available internal mechanisms to explain why he should not be transferred away KTL ELRC CAUSE NO. E003 OF 2026 4 JUDGMENT

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from his family but the 5th Respondent allegedly failed to forward his correspondence to the 2ndRespondent. 14. The Claimant avers that on 16th March 2026, without any official communication from the 2nd Respondent concerning his family’s health circumstances, the 5 th Respondent, through the 6th Respondent, released the Claimant from Endebess SubCounty Headquarters, thereby placing him in a difficult position. 15. It is the Claimant’s case that the Respondents’ actions have compelled him to choose between proceeding on transfer and remaining close to his family to provide the care they require. 16. The Claimant maintains that he is not opposed to being transferred but his plea is that the 2 nd Respondent considers deploying him within Kwanza Sub-County, Trans Nzoia East Sub-County, or West Pokot Sub-County, where he would be able to discharge his duties while remaining sufficiently close to his family. 17. From the record, despite having been duly served, the Respondents did not enter appearance or file any pleadings in response to the Claim and neither did they participate in the KTL ELRC CAUSE NO. E003 OF 2026 5 JUDGMENT

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proceedings. On 20th May 2026, the Court directed that the matter proceeds as an undefended claim and be disposed of by way of written submissions. 18. In his submissions dated 12th June 2026, the Claimant identified the sole issue for determination as whether he had proved his case on a balance of probabilities. He reiterated the circumstances leading to his transfer and the medical and humanitarian considerations upon which he sought its reconsideration. He relied on a Diabetic Self-Care Diary and a medical report dated 17th March 2026, a medical report dated 20th April 2026, which indicates that his wife suffers from chronic lumbago/sciatica and post-surgical abdominal adhesions and had not recovered as at the date of the report. He contended that her condition requires him to provide continued care, support and assistance. 19. The Claimant also relied on posting letters issued by the Teachers Service Commission showing that his wife is a teacher stationed within the region where the family resides. He submitted that his family had established its home and livelihood within the area. KTL ELRC CAUSE NO. E003 OF 2026 6 JUDGMENT

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20. The Claimant submitted that, notwithstanding those circumstances, he was transferred on or about 23 rd January 2026 from Endebess Sub-County Headquarters in Trans Nzoia County to the Kenya Airports Police Unit (KAPU), SOP Eldoret Airport Sub-County Headquarters. 21. He maintained that he had neither rejected nor refused the transfer but rather, had sought its reconsideration and requested to be deployed to a station closer to his family. 22. The Claimant relied on Article 47(1) of the Constitution in arguing that the transfer and deployment of a public officer constitutes administrative action and must, therefore, satisfy the constitutional standards of lawfulness, fairness and reasonableness. 23. In support of that position, the Claimant relied on Kaylor v Minister of Public Service and Administration (2013) 34 ILJ 639 (LC), where the Court observed that public officials may only exercise powers conferred upon them by law and must not act arbitrarily, unreasonably, irrationally or in a procedurally unfair manner. KTL ELRC CAUSE NO. E003 OF 2026 7 JUDGMENT

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24. The Claimant submitted that he placed compelling medical and humanitarian circumstances demonstrate why the before impugned the Respondents transfer to required reconsideration. He stated that he made several written appeals and requests seeking the rescission or diversion of the transfer. 25. He contended that, despite those efforts, his grievances were not considered before the transfer was implemented. He was neither afforded a meaningful opportunity to have his concerns addressed nor given reasons for the rejection of his requests. In this regard, he relied on the decision in Michael Muriuki Muturi v Water Resources Management Authority (2022) KEELRC 940 (KLR), where the Court held that an employer is expected to act humanely and consider an employee’s social circumstances when making a transfer decision. 26. The Claimant also relied on Geoffrey Mworia v Water Resources Management Authority & 2 others [2015] eKLR, for the proposition that the court will only interfere with an employer’s human-resource functions where the employer acts contrary to the Constitution, legislation or the parties’ KTL ELRC CAUSE NO. E003 OF 2026 8 JUDGMENT

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agreement; acts in a manifestly unfair manner; or makes it impossible for the employee to resolve the grievance through the employer’s internal mechanisms. 27. It is the Claimant’s submission that following his transfer, he invoked the internal administrative mechanisms available within the National Police Service. He relied on letters dated 4 th February 2026, 3rd March 2026, 6th March 2026 and 12th March 2026, through which he sought the rescission or diversion of the transfer on account of his family’s medical circumstances. 28. The Claimant contended that his appeals and requests were never forwarded to the appropriate authority for consideration and that his grievances were, therefore, not substantively addressed. 29. According to the Claimant, he exhausted the available internal mechanisms before approaching the Court. He submitted that, instead of being heard or receiving a reasoned response, he was released from Endebess Sub-County Headquarters on 16 th March 2026 through a Casualty Return Transfer and Release Letter without any communication regarding the merits of his appeal. KTL ELRC CAUSE NO. E003 OF 2026 9 JUDGMENT

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30. The Claimant relied on Republic v Deputy Inspector General of Police Service & 2 others ex parte PC Stephen Mathenge [2015] eKLR in support of the argument that failure to consider the need to recognise and protect an officer’s family when exercising the power of transfer amounts to failure to consider a relevant factor and may render the decision irrational. 31. The Claimant further submitted that he was not seeking exemption from duty, immunity from transfer or preferential treatment and that he remained ready and willing to serve in the National Police Service. He asserted that his request was merely that the Respondents consider deploying him within a reasonable distance of his family so that he could discharge his duties while attending to the medical and caregiving needs of his wife and minor child. According to the Claimant, his request to be deployed within Kwanza Sub-County, West Pokot Sub-County, Trans Nzoia East Sub-County or any other nearby station was neither unreasonable nor incompatible with the operational requirements of the National Police Service. KTL ELRC CAUSE NO. E003 OF 2026 10 JUDGMENT

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32. He urged the Court to find that a decision affecting an employee’s family life, particularly where serious medical concerns have been brought to the employer’s attention, must be made after considering all the relevant circumstances. 33. The Claimant also relied on Article 53(2) of the Constitution, which provides that a child’s best interests are of paramount importance in every matter concerning the child. He submitted that his son suffers from diabetes mellitus and requires continuous medical attention, monitoring and insulin injections. His presence and involvement were, therefore, critical to the child’s care and welfare. 34. The Claimant argued that the obligation to prioritise the best interests of a child binds all persons, State organs and public institutions whenever their decisions affect a child. The Claimant further relied on Article 45(1) of the Constitution, which recognises the family as the natural and fundamental unit of society and the necessary basis of social order. He submitted that public institutions are expected, where reasonably possible, to make decisions that preserve rather than undermine family stability and welfare. KTL ELRC CAUSE NO. E003 OF 2026 11 JUDGMENT

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35. He reiterated that the Respondents were dealing with a family facing multiple medical challenges affecting both his wife and minor child which circumstances ought to have been considered before the transfer was implemented. To buttress this position, the Claimant cited the decision in Kariuki & another v Attorney General & 2 others (2024) KEELRC 13501 (KLR), Namu v National Police Service Commission & 2 others (2023) KEELRC 1231 (KLR), Republic v Deputy Inspector General of Police Service & 2 others ex parte PC Stephen Mathenge and Wangari v National Police Service & 2 others (2025) KEELRC 2139 (KLR). 36. The Claimant therefore submitted that the Respondents exercised their administrative power without due regard to constitutional safeguards and the compelling humanitarian circumstances affecting his family. 37. In the end, the Claimant submitted that in view of the uncontroverted evidence and the applicable constitutional and legal principles, the Claimant submitted that he had proved his case on a balance of probabilities. KTL ELRC CAUSE NO. E003 OF 2026 12 JUDGMENT

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38. He accordingly urged the Court to enter judgment in his favour and grant the reliefs sought in the Statement of Claim dated 19th March 2026, together with the costs of the suit. Determination 39. From the pleadings on record and the Claimant’s written submissions as well as the authorities relied upon, the main issue that arises for determination is whether the Respondents exercised their power to transfer the Claimant lawfully, reasonably and fairly, having regard to the medical circumstances affecting his wife and minor child. 40. At the outset, it is important to note that the transfer and deployment of police officers fall within the Respondents’ managerial and statutory mandate. 41. Regulation 4 of the National Police Service Commission (Transfers and Deployments) Regulations, 2015 provides for the authority to transfer police officers as follows: 4. Authority to transfer KTL ELRC CAUSE NO. E003 OF 2026 13 JUDGMENT

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(1) Subject to Article 246 (3) of the Constitution, the mandate to determine transfers shall lie with the Commission. (2) The Commission shall determine inter-county transfers of any officer. (3) The Inspector-General shall— (a) be responsible for determining the distribution of officers in the Service (b) recommend to the Commission, in writing, the authorization of transfers as may be necessary for purposes of attaining the required distribution of officers in the Service. (4) The Commission shall, in considering a recommendation for transfer of an officer by the Inspector-General, inter alia consider— (a) the justification for the transfer (b) whether the proposed transfer would disrupt police work KTL ELRC CAUSE NO. E003 OF 2026 14 JUDGMENT

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(c) whether funds are available to pay the officer's transfer allowance; or (d) ethnic diversity and gender representation. (5) The Inspector-General shall ensure that an officer being transferred has been adequately facilitated. 42. From the foregoing, it is clear that, before an officer is transferred, the Inspector-General must provide the Commission with a written recommendation setting out the necessity for the proposed transfer. In considering that recommendation, the Commission takes into account, among other factors, the justification for the transfer, its likely effect on police work, the availability of funds to pay the officer’s transfer allowance, and the requirements of ethnic diversity and gender representation. 43. The Claimant’s bone of contention is that, in effecting the impugned transfer, the Respondents failed to consider the serious medical circumstances affecting his wife and minor child, despite those circumstances having been brought to their attention through his written representations. He therefore KTL ELRC CAUSE NO. E003 OF 2026 15 JUDGMENT

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contends that the transfer was unreasonable, procedurally unfair and contrary to his right to fair administrative action under Article 47 of the Constitution. 44. Ordinarily, Courts will exercise restraint before interfering with an employer’s human-resource functions. In the case of Geoffrey Mworia v Water Resources Management Authority & 2 others [2015] KEELRC 1124 (KLR) (15 May 2015), cited by the Claimant, the Court held: “25. The court will very sparingly interfere in the employer’s entitlement to perform any of the human resource functions such as recruitment, appointment, promotion, transfer, disciplinary control, redundancy, or any other human resource function. To interfere, the applicant must show that the employer is proceeding in a manner that is in contravention of the provision of the Constitution or legislation; or in breach of the agreement between the parties; or in a manner that is manifestly unfair in the circumstances of the case; or the internal dispute procedure must have been exhausted or the KTL ELRC CAUSE NO. E003 OF 2026 16 JUDGMENT

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employer is proceeding in a manner that makes it impossible to deal with the breach through the employer’s internal process.” 45. Article 47(1) of the Constitution guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Section 4(1) of the Fair Administrative Action Act reiterates that right. A decision transferring a public officer constitutes administrative action and must satisfy those constitutional and statutory standards. 46. This court, in a recent decision, Mulogosi v Kenya Pipeline Ltd (Petition E018 of 2025) [2026] KEELRC 2038 (KLR) (3 July 2026) (Judgment) held as follows when dealing with a similar issue on transfer of the Respondent’s employee:“61. Although the Respondent has every right to transfer any employee to any of its stations, such right is subject to the consideration of each employee’s circumstances as provided in its Human Resource Policy and Procedures Manual at 2.40.7 and 2.40.9. If an employee who has been taken through retirement planning by the employer is to be transferred, a reasonable KTL ELRC CAUSE NO. E003 OF 2026 17 JUDGMENT

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employer is expected to explain to such employee why such action is to be taken and hear representations of the employee before making a final decision.” 47. The evidence shows that the Claimant did not refuse to comply with the transfer. Instead, he sought its reconsideration on account of the medical conditions affecting his wife and minor son. He produced medical reports showing that his wife suffers from chronic lumbago/sciatica and post-surgical abdominal adhesions and that his minor son suffers from diabetes mellitus and requires regular monitoring and insulin injections. 48. The Claimant also produced letters dated 4th February 2026, 3rd March 2026, 6th March 2026 and 12th March 2026 through which he sought the rescinding or diversion of the transfer. His evidence was that the correspondence was not forwarded to the appropriate authority and that he did not receive a response before he was released from Endebess Sub-County Headquarters on 16th March 2026. That evidence was not controverted. The correspondence demonstrates that the Claimant invoked the available internal mechanisms and brought his family’s KTL ELRC CAUSE NO. E003 OF 2026 medical 18 circumstances to the JUDGMENT

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Respondents’ Respondents attention. There considered is no those evidence that the representations or communicated a determination to him. 49. Article 45(1) of the Constitution recognises the family as the natural and fundamental unit of society and the necessary basis of social order. Further, Article 53(2) provides that a child’s best interests are of paramount importance in every matter concerning the child. 50. The requirement to consider the best interests of a child in my view, does not mean that a parent serving in a disciplined service can never be transferred. Neither does it confer upon an officer an unfettered right to select a preferred duty station. It requires the responsible authority to give genuine and demonstrable consideration to the child’s welfare alongside that of the officer and the operational needs of the Service. 51. From the documentary evidence on record, the Claimant’s request was not that he be exempted from transfer. His plea was that he be deployed to a station within a reasonable distance of his family. The Respondents were not necessarily bound to accede to that request. They were, however, required KTL ELRC CAUSE NO. E003 OF 2026 19 JUDGMENT

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to consider it, weigh the medical and family circumstances against the Service’s operational requirements and communicate their decision to the Claimant. 52. No operational reason for the transfer to KAPU, Eldoret Airport, was placed before the Court. Equally, no evidence was tendered to demonstrate that the Claimant’s representations and supporting medical documents were considered before his release from Endebess Sub-County Headquarters. 53. I consequently find that the Respondents’ failure to consider and determine the Claimant’s representations on his appeal before rejecting it was procedurally unfair and unreasonable as it violated the Claimant’s right to fair administrative action under Article 47 of the Constitution and section 4 of the Fair Administrative Action Act. 54. The Claimant sought an injunction restraining the Respondents from releasing, transferring or deploying him to KAPU, Eldoret Airport. By the time the claim was instituted, however, he had already been released from Endebess Sub-County Headquarters. An injunction cannot restrain an act that has already occurred. The appropriate remedy is to require the KTL ELRC CAUSE NO. E003 OF 2026 20 JUDGMENT

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competent authority to reconsider the deployment in accordance with the Constitution and the applicable law. 55. Accordingly, I find that the Claimant has proved his claim on a balance of probabilities to the extent that his representations were not considered before the impugned transfer was implemented. 56. In the upshot, Judgment is entered in favour of the Claimant in the following terms:a. A declaration is hereby issued that the failure to consider and determine the Claimant’s representations concerning his family’s medical circumstances before implementing his transfer violated Article 47 of the Constitution. b. The 2nd Respondent shall reconsider the Claimant’s transfer or deployment, taking into account the medical conditions of his wife and minor child, the best interests of the child and the operational requirements of the National Police Service. c. Pending that reconsideration, the Respondents are restrained from taking disciplinary action against the KTL ELRC CAUSE NO. E003 OF 2026 21 JUDGMENT

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Claimant solely on account of his failure to report to KAPU, Eldoret Airport, arising from the impugned transfer letter. 57. Each party shall bear its own costs. 58. Orders accordingly DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 24TH DAY OF SEPTEMBER, 2026 MAUREEN ONYANGO JUDGE KTL ELRC CAUSE NO. E003 OF 2026 22 JUDGMENT

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