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ELRCPartially AllowedIndustrial Cause (at Nakuru) – Memorandum of Claim filed 19.02.2013· [2013] KEELRC 946 (KLR)

Michael Kagoma Maina v Kenya Police Service & 2 others [2013] KEELRC 946 (KLR)

Industrial and Labour Relations Court (Employment and Labour Relations Court)
20 December 2013
5,126 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, a former police officer who rose to the rank of Superintendent, sued claiming that his verbal interdiction in 2004 and his retrospective retirement at 55 years effective 27.09.2007 were wrongful. He had been interdicted following investigations into alleged theft and false claims over expenditure at Mwingi, charged in Senior Principal Magistrate's Court at Embu, and acquitted after a full trial that followed a three-year investigation and an eight-year trial. The interdiction was lifted retrospectively by letter dated 18.03.2011, which simultaneously informed him that he had retired upon attaining 55 years in 2007. The court framed four issues: procedural regularity of the interdiction, entitlement to serve to 60 years, whether the retirement was unfair termination, and remedies. It found the failure to deliver the interdiction letter a procedural irregularity not nullifying the interdiction. Applying the Head of Public Service circular of 20.03.2009 raising mandatory retirement to 60 years, the court held the claimant, still in service while on interdiction, was entitled to serve to 60. Because the respondents were bound by his acquittal and could not terminate before the criminal case concluded, the retirement at 55 was unfair and breached Article 47. He was awarded Kshs.3,070,200 for five years' withheld salary to age 60 and Kshs.614,040 general damages for unfair termination, total Kshs.3,884,240, with interest if unpaid by 1.3.2014, plus costs fixed at Kshs.200,000. The claim for malicious prosecution damages failed as that remedy was pending in High Court Petition No. 20 of 2013 at Nakuru.

Key legal issues

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01

Whether the verbal interdiction without delivery of the interdiction letter was procedural

Holding

The interdiction was procedurally impaired but not null and void; the internal memorandum evidenced the decision and half pay was imposed.

Reasoning

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.

p. 4
02

Whether the claimant was entitled to serve up to 60 years

Holding

Yes; the circular of 20.03.2009 raising retirement age to 60 years from 1.4.2009 applied to him while on interdiction.

Reasoning

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.

p. 5
03

Whether retirement at 55 was unfair termination

Holding

Yes; the reason (attaining 55) was invalid given the circular and due process was not accorded.

Reasoning

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.

p. 6
04

Entitlement to salary for the 5-year period to age 60 and compensation for unfair termination

Holding

Claimant awarded Kshs.3,070,200 salary (5 years at Kshs.51,170 monthly) plus Kshs.614,040 general damages for unfair termination.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.Costs of the suit fixed at Kshs.200,000.00 payable to the claimant.

Authorities

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Legislation

  • Penal Codesection 280; section 100
  • Constitution of Kenya, 2010Article 47; Article 41(1)
  • Employment Act, 2007section 10(5); section 49(4)(f)
  • Pensions Act Cap 189not specified
  • Police Act Cap 84 Laws of Kenyasection 44
  • Civil Servants Code of RegulationsRegulation R 20(4)
  • Public Service Commission (Police Force) Regulationsregulation 8(5); regulation 8(7)
  • Government circular OP.CBA.2/7A of 20.03.2009 (Review of the Mandatory Retirement Age for Public Servants)not applicable
  • East African Community Treatynot specified

Cases cited (4)

  • Mathew Kipchumba Koskei –Versus- Baringo Teachers SACCO
    Industrial Cause No. 37 of 2013 at Nakuru
  • John Kirui Torongei –Versus- National Cereals and Produce Board
    [2013] EKLR
  • Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers –Versus- Timber Treatment International Limited
    [2013] eKLR, Industrial Cause No. 21 of 2012 at Nakuru
  • Grace Gacheru Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR, Industrial Cause No. 44 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.