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ELRCAllowedNot stated in the judgment (a Cause filed on 5 May 2015)· [2015] KEELRC 262 (KLR)

Elizabeth Gathoni Murimi & another v DCIO Nakuru Railways Police Staton & 3 others [2015] KEELRC 262 (KLR)

Employment and Labour Relations Court
13 November 2015
1,177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Nakuru court ruled that only the National Police Service Commission can interdict police officers, not local commanders, so the two officers' interdictions were unlawful.

What this practically means

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Executive summary

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Two police officers, a Police Constable and a Police Corporal appointed on 11 December 1999, were interdicted by letters dated 9 April 2015 from Justina N. Nzivo, the Officer Commanding Police Division (Railways) Nakuru, on suspicion of stealing goods on transit, purportedly under Paragraph 25(i) of the Service Standing Orders (Cap. 20). They jointly filed a Memorandum of Claim on 5 May 2015 alleging the interdiction was unlawful and in breach of the Employment Act, seeking declarations and orders. The court identified a single main issue: whether the 3rd Respondent had the power or authority to interdict the Claimants. Holding the issue essentially legal and the facts undisputed, the court reasoned that under Article 246(3)(b) of the Constitution and section 87(6) of the National Police Service Act, the power to interdict police officers is reserved to the National Police Service Commission, which was not a party and had not delegated the power to the 3rd Respondent. The Discipline Regulations of 2015 relied on by the Respondents were gazetted only after the interdiction, and no designation of the 3rd Respondent as an 'authorised officer' was shown. Further, no recommendation by the Internal Affairs Unit, a sine qua non for interdiction, existed. The court declared the interdictions unlawful and ordered the Claimants' restoration to their offices without loss of benefits from the date of interdiction, directed that any future disciplinary process comply with the law, and ordered each party to bear its own costs. It also observed obiter on parallel criminal and disciplinary investigations and noted a similar prior decision, Kazungu Ngumbao Jeremiah & 3 Ors v Attorney General & 2 Ors.

Key legal issues

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01

Whether the 3rd Respondent had the power or authority to interdict the Claimants

Holding

The interdiction was unlawful because the power to interdict police officers vests in the National Police Service Commission, which was not a party and had not delegated the power to the 3rd Respondent, and there was no recommendation by the Internal Affairs Unit.

Reasoning

Under Article 246(3)(b) of the Constitution and section 87(6) of the National Police Service Act, disciplinary control including interdiction is reserved to the National Police Service Commission. The Internal Affairs Unit's recommendation of interdiction is a sine qua non for the Commission or its delegates to act. No such recommendation existed, no delegation to the 3rd Respondent was shown, and the Discipline Regulations relied on were gazetted after the interdiction.

p. 2
02

Whether parallel investigations by the National Police Service and the Internal Affairs Unit are permissible

Holding

The National Police Service retains the mandate to investigate criminal offences against police officers and may prefer charges, and parallel disciplinary inquiries by the Internal Affairs Unit are permissible, though modalities for coordination should be developed.

Reasoning

The court clarified that its finding did not divest the National Police Service of its primary mandate to investigate criminal offences even against police officers. Where evidence justifies criminal charges, the statutory route should be followed, while the Internal Affairs Unit may separately inquire into the same allegations for disciplinary purposes. Parallel investigations are not necessarily duplicitous, but the Commission and the Service should devise modalities for optimum use of resources and time.

p. 2

Legal principles established

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  • The power to interdict a Police Officer is reserved to the National Police Service Commission and cannot be exercised by an officer without delegation or a recommendation by the Internal Affairs Unit.
  • An interdiction exercised without statutory authority or delegated power is unlawful.

Court orders

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  1. 1.Declaration that the interdiction of the Claimants by the 3rd Respondent was unlawful and in contravention of the Constitution and the National Police Service Act
  2. 2.The Respondents ordered to restore the Claimants to their offices without loss of any benefits from the date of interdiction
  3. 3.Advisory direction that should the National Police Service Commission wish to pursue disciplinary action against the Claimants, it should comply with the law
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 246(1) and (3), including 246(3)(b)
  • National Police Service ActPart X; Section 87, including section 87(6)
  • National Police Service Commission (Discipline) Regulations, 2015 (Legal Notice No. 90 of 2015)Regulation 14(1)
  • Service Standing Orders (Cap. 20)Paragraph 25(i)
  • Employment ActNot specified (invoked in the Memorandum of Claim)

Cases cited (1)

  • Kazungu Ngumbao Jeremiah & 3 Ors v the Attorney General & 2 Ors
    (2015) eKLR, Nakuru Petition No. 6 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (Article 246(3)(b) and the National Police Service Act considered); specific jurisdictional provision not stated in the judgment

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, "Elizabeth Gathoni Murimi & another v DCIO Nakuru Railways Police Staton & 3 others [2015] KEELRC 262 (KLR)", Case Analysis (2015). Not stated in the judgment (a Cause filed on 5 May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/262/eng@2015-11-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.