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ELRCDismissedNot stated in the judgment (constitutional petition)· [2015] KEELRC 778 (KLR)

Peter Adika v National Police Service Commission & another [2015] KEELRC 778 (KLR)

Employment and Labour Relations Court
10 July 2015
LNLinnet Ndolo
1,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a former police officer's constitutional challenge, confirming that ordinary employment disputes must use normal procedures, not constitutional petitions.

What this practically means

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Executive summary

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The Petitioner, an ex-Police Corporal with 21 years' service, petitioned the Employment and Labour Relations Court at Nairobi challenging his dismissal from the Kenya Police Service. On 13th September 2010, while controlling traffic along Thika Road, he was found with Kshs.1,800 concealed under his white cap cover after a report of soliciting a bribe. He was charged before an orderly room proceedings with acting to the prejudice of good order and discipline contrary to Regulation 3(41) of the Police Regulations, convicted, and dismissed on 24th September 2010. He claimed violations of Articles 25(c), 41(1), 47(1) and 50(1), alleging that the Deputy Traffic Commandant acted as complainant, witness and judge, that he was denied notice, representation and a fair hearing, and that his appeal was never heard. He sought declarations of violation, reinstatement or alternatively notice pay, salary from dismissal, 12 months' statutory damages and terminal dues. The Respondents maintained that proper Police Regulations procedures were followed and that the Petitioner's appeal was considered and disallowed by the Headquarters Disciplinary Board. The Court framed three issues: violation of rights, lawfulness and fairness of the dismissal, and entitlement to remedies. Relying on the Harrikissoon principle, Ndolo J held that the petition raised no issues outside an ordinary employment relationship warranting constitutional intervention, that employer action is not administrative action under Article 47, and that the Employment Act excludes disciplined forces. On a balance of probability, a valid reason for dismissal existed and the disciplinary procedure was properly followed. The petition was dismissed with no order for costs.

Key legal issues

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01

Whether the dismissal violated the Petitioner's constitutional rights

Holding

No violation; the petition misuses the Bill of Rights route for what is an ordinary employment matter

Reasoning

The Court relied on the Harrikissoon principle that constitutional redress should not be a general substitute for normal procedures. Labour rights under Article 41 have not displaced applicable employment law. Employer action against an employee is not administrative action under Article 47, and nothing in the petition rose above an ordinary employment relationship.

p. 4
02

Whether the dismissal was lawful and fair

Holding

Lawful and fair; the Police Regulations procedure was correctly applied and followed

Reasoning

The Employment Act does not apply to disciplined forces, so the Police Regulations governed. The Petitioner signed a waiver notice, was allowed to cross-examine three witnesses, and received a detailed dismissal letter. The Court found on a balance of probability that there was a valid reason for dismissal - money concealed under the white cap cover - and that the appeal was considered and disallowed by the Headquarters Disciplinary Appeals Board.

p. 5
03

Whether the Petitioner is entitled to the remedies sought

Holding

Not entitled; the petition was dismissed with no order for costs

Reasoning

Having found no violation of rights and no unfairness in the dismissal, none of the remedies sought - reinstatement, notice pay, salary, statutory damages or terminal dues - could be granted.

p. 5

Legal principles established

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  • Not every termination of employment amounts to a violation of constitutional rights; statutory employment procedures govern ordinary employment disputes
  • Action taken by an employer against an employee does not constitute administrative action under Article 47 of the Constitution
  • Section 3(2) of the Employment Act, 2007 excludes disciplined forces, including the Kenya Police, from the Act's application

Court orders

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  1. 1.The petition is dismissed with no order for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41(1), 47(1), 50(1), 25(c), 245, 246
  • Employment Act, 2007Section 3(2)
  • Police RegulationsRegulation 3(41)
  • Force Standing OrdersRegulation 3(41)

Cases cited (2)

  • Kemrajh Harrikissoon vs the Attorney General of Trinidad and Tobago
    [1979] UKPC 3
  • Prisca Kemboi & 2 Others v Kenya Post Office Savings Bank
    [2014] eKLR
Jurisdiction invoked
Not expressly stated in the judgment; petition invoking Articles 25(c), 41(1), 47(1) and 50(1) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Adika v National Police Service Commission & another [2015] KEELRC 778 (KLR)", Case Analysis (2015). Not stated in the judgment (constitutional petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/778/eng@2015-07-10

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