Omondi v Attorney General & 2 others (Civil Appeal 20 of 2020) [2021] KECA 1086 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a police officer can be removed for repeated absenteeism even after being acquitted of desertion in criminal court.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a justifiable reason for the appellant's removal from the police service
Yes. On a balance of probabilities, the record showed a pattern of absenteeism sufficient to justify the conclusion that the appellant was unlikely to become an efficient police officer; the removal was not based solely on the desertion charge of which he was acquitted.
The Court re-appraised the evidence under its first-appeal mandate. Orderly room proceedings, fines, salary forfeitures and witness testimony established at least four incidents of absenting himself without leave. The appellant's own reinstatement application admitted deserting for 72 days despite his acquittal. The desertion incident was only one in a series leading to the conclusion of inefficiency.
Whether the procedure followed in removing the appellant was proper, fair and lawful
Yes. The procedure under Paragraph 33 of Chapter 20 of the Force Standing Orders was followed: notice to show cause, reasons, opportunity to make representations, written notification of removal with a right of appeal, which the appellant exercised.
The appellant was served with a notice to show cause, responded in writing, was notified in writing of the removal date, and lodged an appeal which was disallowed. Removal for inefficiency under the Standing Orders is distinct from disciplinary proceedings and does not require orderly room proceedings or referral to the Internal Affairs Unit, whose mandate under Section 87 of the National Police Service Act is to handle complaints against police. The testimony on the process was unchallenged in cross-examination.
Whether the criminal acquittal on a desertion charge barred removal proceedings on related grounds
No. Employers are not bound by the outcome of criminal cases in undertaking disciplinary proceedings; the two processes are distinct.
Relying on its own prior decisions in Attorney General v Andrew Maina Githinji and Teachers Service Commission v Joseph Wambugu Nderitu, the Court held that a successful outcome of a criminal process does not have primacy over an internal disciplinary process arising from the same circumstances, and an acquittal does not prevent removal proceedings based on the officer's disciplinary record and conduct.
Whether the Commandant, Anti-Stock Theft Unit had power to remove the appellant, and whether the Internal Affairs Unit should have been involved
The mandate complaint had not been raised before the lower court; delegation of removal powers is permissible under paragraph 30 of the Standing Orders, making it a question of fact. The Internal Affairs Unit deals with external complaints, not removals.
Paragraph 30 of the Force Standing Orders allows the Commissioner of Police or Provincial Police Officer to delegate removal powers to officers of or above the rank of Assistant Commissioner of Police, so whether the Commandant held delegated powers would have been a question of fact. Under Section 87 of the National Police Service Act, the Internal Affairs Unit's role is to deal with external complaints against police officers, not removal of officers from service.
Legal principles established
#- Employers are not bound by the outcome of criminal proceedings when undertaking disciplinary proceedings arising from the same set of circumstances; a successful criminal outcome does not bar or have primacy over an internal disciplinary process.
- Removal of a police officer from service for inefficiency under the Force Standing Orders is distinct from disciplinary proceedings and does not require orderly room proceedings; compliance with the notice-to-show-cause, representation and appeal procedure satisfies Articles 47 and 50 of the Constitution.
- An appellate court will not interfere with a trial judge's findings of fact unless the judge failed to take into account material circumstances or probabilities, the impression based on a witness's demeanour is inconsistent with the evidence generally, the finding is based on no evidence, or the judge acted on wrong principles.
Court orders
#- 1.Upholding the judgment of the ELRC
- 2.Dismissal of the appeal
- 3.Costs of the appeal to the respondents
- On appeal from
- Employment and Labour Relations Court at Mombasa
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 29(1)(a) of the Court of Appeal Rules (employment matter decided by the ELRC); no Article 163(4) certification invoked
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okoiti v Ministry of Lands, Public Works, Housing and Urban Development & 30 others (Land Case Petition E052 of 2025) [2026] KEELC 3230 (KLR)[2026] KEELC 3230 (KLR)29 May 2026
- Mango v Director General, National Youth Service & 2 others (Civil Appeal 640 of 2019) [2025] KECA 1835 (KLR)[2025] KECA 1835 (KLR)7 Nov 2025followed
- Birir v National Water Harvesting & Storage Authority & another (Cause E264 of 2024) [2025] KEELRC 2241 (KLR)[2025] KEELRC 2241 (KLR)25 Jul 2025
- Makokha v National Police Service Commission & 3 others (Petition E032 of 2023) [2023] KEELRC 1881 (KLR)[2023] KEELRC 1881 (KLR)4 Aug 2023distinguished
Cite this brief
#Cite this brief
Caselaw, "Omondi v Attorney General & 2 others (Civil Appeal 20 of 2020) [2021] KECA 1086 (KLR)", Case Analysis (2021). Civil Appeal No 20 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1086/eng@2021-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.