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ELRCAllowedPetition No 2 of 2015· [2015] KEELRC 1036 (KLR)

Maingi v National Police Service Commission & 2 others (Petition 2 of 2015) [2015] KEELRC 1036 (KLR)

Employment and Labour Relations Court
5 June 2015
5,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan police officer fired after being acquitted of corruption charges won his job back, because you cannot be disciplined twice for the same alleged offence.

What this practically means

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Executive summary

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The petitioner, a police officer enlisted in 1987, was charged with seven counts under the Anti-Corruption and Economic Crimes Act in Anti-Corruption Case No. 2 of 2012 in the Chief Magistrate's Court at Nyeri and, on 16.12.2014, was acquitted on all counts under section 215 of the Criminal Procedure Code. His interdiction under section 62 of the Act was lifted, but the same day he was served a show-cause notice under section 35(a) of the Service Standing Orders seeking his removal on the basis of the acquitted matters, followed by a removal letter dated 7.05.2015 which mischaracterised his acquittal as a conviction. He petitioned, invoking Articles 27, 28, 41, 47 and 50. The court framed four issues. It held that once an employer initiates criminal proceedings and the employee is acquitted, the employer is bound by that outcome and cannot subject the employee to disciplinary proceedings on similar or substantially similar allegations; the Anti-Corruption and Economic Crimes Act conferred exclusive jurisdiction on the criminal trial court over such allegations. Section 88(4) of the National Police Service Act, in so far as it permitted the Commission to retry acquitted or convicted officers through disciplinary action, was declared unconstitutional and void for inconsistency with Article 50(2)(o). The court found violations of Articles 50(2)(a) and (o), 47(1), 41(1) and 27(1) and (2), rejected the respondents' exhaustion argument under section 89(2), and entered judgment for the petitioner: the removal proceedings and the 7.05.2015 letter were declared null and void, the petitioner to continue in employment with full benefits, and the respondents to pay costs.

Key legal issues

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01

Whether administrative disciplinary proceedings may proceed on allegations similar or substantially similar to those for which the employee was acquitted

Holding

The petitioner could not be subjected to administrative disciplinary procedure upon similar or substantially similar allegations for which he was acquitted; the employer is bound by the criminal court's acquittal.

Reasoning

The court applied its own prior principles: where an employer makes a criminal complaint and the employee is exculpated, the employer is bound by that outcome. The Anti-Corruption and Economic Crimes Act provided the conclusive regime for allegations under it, placing findings in the exclusive jurisdiction of the criminal trial court. Section 62(3) required cessation of suspension upon acquittal, and lifting the interdiction ended the matter without legitimate recourse to fresh disciplinary proceedings.

p. 6
02

Constitutionality of section 88(4) of the National Police Service Act

Holding

Section 88(4) is unconstitutional to the extent it empowers the Commission to retry police officers in disciplinary proceedings for acts or omissions for which they were acquitted or convicted, as it is inconsistent with Article 50(2)(o).

Reasoning

The court held the subsection is not worded to override the Anti-Corruption and Economic Crimes Act and does not entitle the Commission to undermine the tenet that a criminal court's finding is conclusive on liability. Article 50(2)(o) bars trial for an offence for which the accused was previously acquitted. A retrial styled as administrative discipline is unconstitutional, null and void; the Commission may only implement the criminal court's decision.

p. 8
03

Whether the petitioner's constitutional rights were violated

Holding

Violations of Articles 50(2)(a) and (o), 47(1), 41(1) and 27(1) and (2) were established through the recommendation letter of 3.02.2015 and removal letter of 7.05.2015.

Reasoning

The 3.02.2015 recommendation asserting the officer committed the offences disregarded the acquittal and amounted to a second trial by an incompetent authority, breaching Article 50(2)(a) and (o). The 7.05.2015 letter falsely stated the acquittal was a conviction. The disciplinary proceedings contravened section 62(3) of the Act, the removal on acquitted matters was an unfair labour practice under Article 41(1), and the retrial breached equality rights under Article 27.

p. 9
04

Whether the court could intervene despite the respondents' statutory duties and the exhaustion argument under section 89(2)

Holding

Intervention was justified because the employer acted in contravention of the Constitution and legislation; the section 89(2) review process had not accrued and legality/constitutionality issues were properly for the court.

Reasoning

The court reiterated that it interferes sparingly in employer human resource functions, but interference is warranted where the employer proceeds unconstitutionally, unlawfully or manifestly unfairly. At the time of filing, the disciplinary process had not concluded so section 89(2) review had not accrued, and questions of legality and constitutionality fell within the court's jurisdiction rather than the administrative review process.

p. 10

Legal principles established

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  • Where the employer makes a criminal complaint and the employee is exculpated or found innocent, the employer is bound by the criminal outcome and may not impose punishment on similar or substantially similar grounds
  • Once acquitted or convicted, a police officer may not be retried through an administrative disciplinary process styled as 'disciplinary action'; such process is a retrial and unconstitutional
  • Section 88(4) of the National Police Service Act is unconstitutional in so far as it permits the Commission to retry officers acquitted or convicted by the criminal court, being inconsistent with Article 50(2)(o)

Court orders

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  1. 1.Declaration that the act of serving the petitioner with a notice to show cause and initiating removal proceedings based on the concluded anti-corruption case breaches Articles 27(1) and (2), 41(1), 47(1) and 50(2)(a) and (o) and is null and void
  2. 2.Declaration that the letter dated 7.05.2015 Ref. No. PF/NO.53419 TJ/3 conveying removal, or any removal proceedings or decision founded on matters in Anti-Corruption Case No. 2 of 2012, is null and void and the petitioner is entitled to continue in employment without a break and with full benefits
  3. 3.Declaration that section 88(4) of the National Police Service Act is unconstitutional to the extent it empowers the National Police Service Commission to retry police officers in a disciplinary process for acts or omissions for which they were acquitted or convicted, being inconsistent with Article 50(2)(o), and is null and void to that extent
  4. 4.The petitioner to serve the judgment within 7 days upon the respondents, the Attorney General, the Law Reform Commission, and the Commission for the Implementation of the Constitution for appropriate action in view of order (3)
  5. 5.The respondents shall pay the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3(1), 10, 19, 20, 21, 22, 27(1)(2)(3), 28, 41(1), 47(1)(2), 48, 50(1)(2)(a)(o), 244(b), 245(4), 246(b), 258
  • Anti-Corruption and Economic Crimes Act No. 3 of 2003Sections 39(3)(a), 48(1), 62(1), 62(3), 66(1)(c), 66(2)
  • National Police Service ActSections 88(1)-(4), 89, 89(2)
  • Criminal Procedure Code (Cap. 75)Section 215
  • Service Standing Orders (Cap. 20)Section 35(a), Section 35(d)
  • Constitution of Kenya Supervisory and Protection of Fundamental Rights and Freedoms of the Individual (High Court Procedure) Rules 2013Rules 4, 10, 11, 13, 20

Cases cited (2)

  • Mathew Kipchumba Koskei –Versus- Baringo Teachers SACCO
    [2013] eKLR, Industrial Cause No. 37 of 2013 at Nakuru
  • Geofirey Mworia –Versus- Water Resources Management Authority
    [2015] eKLR
Jurisdiction invoked
Articles 22, 258 of the Constitution and rules 4, 10, 11, 13 and 20 of the Constitution of Kenya (Supervisory and Protection of Fundamental Rights and Freedoms of the Individual) High Court Procedure Rules, 2013

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, "Maingi v National Police Service Commission & 2 others (Petition 2 of 2015) [2015] KEELRC 1036 (KLR)", Case Analysis (2015). Petition No 2 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1036/eng@2015-06-05

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