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Court of AppealDismissedCivil Appeal No 20 of 2020· [2021] KECA 1086 (KLR)

Omondi v Attorney General & 2 others (Civil Appeal 20 of 2020) [2021] KECA 1086 (KLR)

Court of Appeal
3 December 2021
4,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant, a police constable enlisted on 12th May 2011, was removed from the Kenya Police Service with effect from 3rd April 2014 on the ground that he was unlikely to become an efficient police officer, owing to a history of absenting himself without leave. He had earlier been interdicted, charged with desertion, acquitted by the Chief Magistrate's Court at Naivasha, and reinstated. The Employment and Labour Relations Court at Mombasa (Onesmus Makau, J.) dismissed his claim for unfair termination, holding that the Employment Act does not apply to police service members by dint of Section 3(2)(b) and that ILO Convention No. 158 was never ratified by Kenya. On appeal, a full bench of the Court of Appeal at Mombasa (Kairu, Msagha and Nyamweya, JJ.A) re-appraised the evidence under its first-appeal mandate. The Court held there was ample evidence of a pattern of absenteeism, including orderly room proceedings, fines and salary forfeitures, justifying removal; the acquittal did not bar removal since criminal and internal disciplinary or removal processes are distinct. The Court also held that removal for inefficiency under Chapter 20 of the Force Standing Orders is distinct from disciplinary proceedings, does not require orderly room proceedings, and does not require referral to the Internal Affairs Unit, whose mandate under Section 87 of the National Police Service Act is to handle external complaints. The appellant was given notice to show cause, an opportunity to respond, written notification, and an appeal, satisfying the requirements of fair procedure. The Court upheld the ELRC judgment and dismissed the appeal with costs to the respondents.

Key legal issues

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01

Whether there was a justifiable reason for the appellant's removal from the police service

Holding

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.

Reasoning

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.

p. 6
02

Whether the procedure followed in removing the appellant was proper, fair and lawful

Holding

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.

Reasoning

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.

p. 8
03

Whether the criminal acquittal on a desertion charge barred removal proceedings on related grounds

Holding

No. Employers are not bound by the outcome of criminal cases in undertaking disciplinary proceedings; the two processes are distinct.

Reasoning

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.

04

Whether the Commandant, Anti-Stock Theft Unit had power to remove the appellant, and whether the Internal Affairs Unit should have been involved

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.Upholding the judgment of the ELRC
  2. 2.Dismissal of the appeal
  3. 3.Costs of the appeal to the respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 2(6)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 50
  • Employment ActSection 3(2)(b)
  • Employment ActSection 41
  • Employment ActSection 44(4)(f)
  • National Police Service ActSection 94(1)
  • National Police Service ActSection 94(1)(3)
  • National Police Service ActSection 87
  • Force Standing Orders (Revised edition 2001)Chapter 20, Paragraph 30
  • Force Standing Orders (Revised edition 2001)Chapter 20, Paragraph 33
  • Force Standing Orders (Revised edition 2001)Chapter 20, Paragraph 36
  • Force Standing Orders (Revised edition 2001)Chapter 20, Paragraphs 16 to 24
  • Service Standing OrdersChapter 5
  • Court of Appeal RulesRule 29(1)(a)
  • Criminal Procedure CodeSection 215
  • International Labour Organization Convention No. 158Articles 3 and 4
  • Termination of Employment Convention 1982Articles 3 and 4

Cases cited (10)

  • Kennedy Odhiambo Owino vs. National Police Service Commission & 3 Others
    [2018] eKLR
  • Joshua Muindi Maingi vs. National Police Service Commission & 2 Others
    [2015] eKLR
  • Teachers Service Commission vs. JWN
    [2014] eKLR
  • Anarita Karimi Njeru vs. Republic (No.1)
    [1979] KLR 154
  • Mumo Matemo vs. Trusted Society of Human Rights Alliance
    [2014] eKLR
  • Kipkurui Langat vs Police Commissioner/Inspector General, National Police Service & another
    [2012] eKLR
  • Selle vs. Association of Motorboat Co. of Kenya & Others
    [1968] EA 123
  • Abdul Hameed Saif v. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Attorney General and another vs. Andrew Maina Githinji and another
    [2016] eKLR
  • Teachers Service Commission vs Joseph Wambugu Nderitu
    [2016] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.