Michael Kagoma Maina v Kenya Police Service & 2 others [2013] KEELRC 946 (KLR)
The bottom line
#A police officer forced to retire at 55 after being acquitted of criminal charges won Kshs.3.88 million because his employer had to wait for the criminal case outcome.
What this practically means
#Executive summary
#Key legal issues
#Whether the verbal interdiction without delivery of the interdiction letter was procedural
The interdiction was procedurally impaired but not null and void; the internal memorandum evidenced the decision and half pay was imposed.
Both parties accepted an interdiction was imposed. The claimant was entitled to receive the letter of interdiction, but the internal memorandum/signal evidenced the decision and half salary was imposed as prescribed. The failure to deliver the letter did not occasion substantial injustice nor undermine the Commissioner's jurisdiction, so the decision stands.
Whether the claimant was entitled to serve up to 60 years
Yes; the circular of 20.03.2009 raising retirement age to 60 years from 1.4.2009 applied to him while on interdiction.
While on interdiction the claimant remained in the full service of the respondents and had not been terminated. Had he been convicted he would likely have been dismissed; having been acquitted, he was entitled to the benefits of a good and diligent officer, including the new retirement age policy in the circular.
Whether retirement at 55 was unfair termination
Yes; the reason (attaining 55) was invalid given the circular and due process was not accorded.
The respondents were bound to determine the fate of the employment based on the outcome of the criminal proceedings that led to the interdiction, and could not legitimately terminate it before the criminal case was determined except by agreement. The retirement letter dated 18.03.2011 came after the Constitution 2010 was in force and violated the right to fair administrative action under Article 47.
Entitlement to salary for the 5-year period to age 60 and compensation for unfair termination
Claimant awarded Kshs.3,070,200 salary (5 years at Kshs.51,170 monthly) plus Kshs.614,040 general damages for unfair termination.
Applying the court's precedents on partial reinstatement and legitimate expectation during unlawful suspension/termination, and given that regulations and section 44 of the Police Act precluded an interdicted officer from other employment, the claimant was entitled to withheld salary for the period to age 60 and damages for unfair termination.
Legal principles established
#- A procedural irregularity in administrative decision-making that does not occasion substantial injustice or impair the decision-maker's jurisdiction does not render the decision null and void.
- Where an employer elects to refer an employee's alleged criminal misconduct to the criminal justice process, it is bound by the outcome and may not discipline the employee on the same grounds if the employee is exculpated.
- In the absence of a mandatory statutory or constitutional retirement age, mandatory retirement is a term of the employment contract to be agreed or varied by the employer in consultation with the employee under section 10(5) of the Employment Act, 2007.
- Payment during interdiction or suspension depends on the outcome of the disciplinary process; denying payment to an exculpated employee is an unfair labour practice.
Court orders
#- 1.A declaration that the retrospective termination of the claimant's employment by way of retirement on account of attaining the age of 55 years as conveyed in the letter dated 18.03.2011 was unfair and the claimant was entitled to retire upon attaining 60 years of age effective 27.9.2012 with due pension benefits.
- 2.A declaration that the abrupt severance of the claimant's half salary with effect from 27.9.2007 which he used to earn while in the police service and on interdiction was illegal and unlawful.
- 3.The respondents to pay the claimant Kshs.3,884,240.00 by 1.3.2014, failing interest to be payable at court rates from the date of the judgment till full payment.
- 4.Costs of the suit fixed at Kshs.200,000.00 payable to the claimant.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kagoma Maina v Kenya Police Service & 2 others [2013] KEELRC 946 (KLR)", Case Analysis (2013). Industrial Cause (at Nakuru) – Memorandum of Claim filed 19.02.2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/946/eng@2013-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.