Kenya Council of Employment and Migration Agency v National Police Service Commission & 8 others [2014] KEELRC 884 (KLR)
The bottom line
#Kenya's Employment Court stopped the National Police Service from passing out or deploying any improperly recruited police trainees pending a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Industrial Court over the recruitment of police recruits
The court held it has jurisdiction; the subject matter is recruitment, training, employment and deployment of police officers, which is employment and labour relations under Article 162(2), and the constitutional provisions of Articles 22 and 258 cannot be limited by Section 12(1) of the Industrial Court Act.
The court reasoned that although police officers are recruited in the public sector, the subject matter remains one of employment and labour relations, squarely within Article 162(2)(a). Section 12(1) of the Industrial Court Act, being narrow and limited, cannot curtail the broad constitutional provisions of Articles 162(2)(a), 22 and 258 on employment and labour relations and enforcement of the Bill of Rights and the Constitution. The respondents' jurisdictional objection therefore fails.
Locus standi of the claimant association
The claimant has locus standi. Articles 22 and 258 permit every person, and associations acting in the interest of members or the public interest, to institute proceedings without the fetters of the old restrictive standing rules.
The court held that locus standi had historically been used as a stumbling block to realization of fundamental freedoms and a disabler to public interest litigation. Articles 22 and 258 of the 2010 Constitution pre-empted that practice by enabling persons and organizations to pursue infringement of the Constitution and Bill of Rights without fetter. The objection, requiring examination of the nexus between the claimant and affected parties, was farfetched under the libertarian constitutional dispensation.
Fate of the supporting affidavit under Order 19 rules 3(1) and 6 of the Civil Procedure Rules
The objection to the affidavit fails; constitutional provisions oust technicalities and formalities in the pursuit of enforcement of the Constitution and Bill of Rights, and the affidavit cannot be struck out on that basis.
The court held that the constitutional provisions cited (Articles 22 and 258) oust arguments on technicalities and formalities in the realization of constitutional violations, and these can be employed to oust the submission on lack of efficacy of the supporting affidavit. Undue disregard to technicalities and formality is a constitutional practice that should be sustained at all times. The court also found the preliminary objection raised issues of fact, not pure points of law, and dismissed it.
Validity of the preliminary objection
The preliminary objection was dismissed because the three grounds raised were not pure points of law and required ascertainment of facts and evidence.
Relying on the Mukhisa Biscuits definition, the court observed that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. The respondent's three grounds - jurisdiction, locus standi and the affidavit - required factual inquiry and were therefore not sustainable as a preliminary objection.
Legal principles established
#- Recruitment, training, employment and deployment of police officers is a matter of employment and labour relations within Article 162(2) of the Constitution, and the narrow provisions of Section 12(1) of the Industrial Court Act cannot limit the broad provisions of Articles 162(2)(a), 22 and 258.
- Articles 22 and 258 of the Constitution entitle persons and associations to pursue infringement of the Constitution and fundamental freedoms without fetter, and locus standi cannot be used to short-circuit public interest litigation.
- Constitutional provisions on enforcement of the Bill of Rights oust arguments based on technicalities and formalities, including objections to affidavits under Order 19 of the Civil Procedure Rules.
- A preliminary objection raising issues requiring ascertainment of facts cannot succeed.
Court orders
#- 1.Temporary injunction restraining the 1st to 9th respondents, their commissioners, agents and employees from recruiting, admitting, employing or passing out recruits who were never recruited or did not pass the initial training period, or filling replacements of individuals not on the list of field recruits witnessed by the District Security Committee, District Intelligence Committee, NGOs, Usalama, EACC, Usalama Forum Officer In-Charge of Police Divisions and County Commanders
- 2.The offices and organizations in Order No. 1 to confirm the actual recruitment undertaken in the 286 districts per the advertisements of 29th October 2011 and 23rd November 2013 and the reporting of the 7,000 recruits to the various police colleges
- 3.The 1st to 9th respondents barred from giving service numbers and restrained from employing improperly recruited and trained recruits to perform duties of police officers under the National Police Service pending hearing and determination of the suit
- 4.The respondents restrained from replacing the recruits with others who had fake certificates or who became pregnant while in college or were suspended from their positions
- 5.The commandants of Embakasi Administration Police School, Kiganjo Police College and General Services Unit Training School restrained from interfering with the records of recruitment and training pending determination of the claim
- 6.The 1st respondent or its agents compelled to table before the court, within fifteen (15) days, the initial list of recruits from the 286 districts, the initial list of dropouts, the initial list of replacements and their diverse dates for scrutiny and ascertainment of veracity
- 7.Mention on 14th April, 2014 to confirm compliance and give further directions
- 8.Costs of the application to be borne by the respondents
- Jurisdiction invoked
- Articles 162(2)(a), 22 and 258 of the Constitution of Kenya, 2010; Section 12(1) of the Industrial Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Council of Employment and Migration Agency v National Police Service Commission & 8 others [2014] KEELRC 884 (KLR)", Case Analysis (2014). Notice of Motion dated 18th February, 2014 (Industrial Court cause; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/884/eng@2014-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.