Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNotice of Motion dated 18th February, 2014 (Industrial Court cause; number not stated in judgment)· [2014] KEELRC 884 (KLR)

Kenya Council of Employment and Migration Agency v National Police Service Commission & 8 others [2014] KEELRC 884 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 March 2014
3,951 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

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

#
This is a ruling on a Notice of Motion dated 18th February 2014 in which the claimant, an association concerned with employment and migration matters, sought temporary injunctions restraining the National Police Service Commission and eight other respondents from recruiting, passing out, giving service numbers to, or deploying improperly recruited police trainees from the November 2012 recruitment conducted at 286 districts plus an allegedly irregular 'Centre 287' at Bruce House, and sought compelled production of the initial recruitment lists. Counsel for the respondents (3rd to 8th) filed a preliminary objection on three grounds: lack of jurisdiction of the Industrial Court, lack of locus standi of the claimant, and non-compliance with Order 19 rule 3 of the Civil Procedure Rules in the supporting affidavit. The court framed three issues: jurisdiction, locus standi, and the fate of the supporting affidavit. It held that recruitment, training, employment and deployment of police officers is a matter of employment and labour relations within Article 162(2)(a) of the Constitution, and that the narrow Section 12(1) of the Industrial Court Act cannot limit Articles 162(2)(a), 22 and 258. On standing, the court held that Articles 22 and 258 allow persons and associations to pursue constitutional infringement without fetter. The affidavit objection and the preliminary objection as a whole were dismissed for raising factual rather than pure points of law. The application was allowed with interim injunctions, an order compelling the 1st respondent to table recruitment lists within fifteen days, mention set for 14th April 2014, and costs awarded to the claimant against the respondents.

Key legal issues

#
01

Jurisdiction of the Industrial Court over the recruitment of police recruits

Holding

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.

Reasoning

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.

p. 6
02

Locus standi of the claimant association

Holding

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.

Reasoning

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.

p. 7
03

Fate of the supporting affidavit under Order 19 rules 3(1) and 6 of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 7
04

Validity of the preliminary objection

Holding

The preliminary objection was dismissed because the three grounds raised were not pure points of law and required ascertainment of facts and evidence.

Reasoning

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.

p. 7

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. 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. 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. 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. 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. 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. 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. 7.Mention on 14th April, 2014 to confirm compliance and give further directions
  8. 8.Costs of the application to be borne by the respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 258
  • Industrial Court ActSection 12(1)
  • Employment Act2007
  • Industrial Relations Act2007
  • Civil Procedure RulesOrder 19, rule 3(1)
  • Civil Procedure RulesOrder 19, rule 6
  • Societies Actregistration of the claimant
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013gazettement under Article 22(3)

Cases cited (4)

  • S.K. Macharia Vs Kenya Commercial Bank and 2 Others
    unreported
  • Owners of the Motor Vessel "Lilian S" v. Caltex Oil (Kenya) Ltd.
    [1989] KLR 1
  • Joshua Karianjahi Waiganjo versus Attorney General
    Nairobi High Court Petition 42 of 2013
  • Joseph Gitau & 2 Others Vs Ukay Estate Ltd
    Nbi H.C.C.C. No. 813 of 2004
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.