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ELRCPartially AllowedNot stated in the judgment as provided· [2015] KEELRC 1082 (KLR)

Sammy Bently Aluso & another v Commissioner of Police & another [2015] KEELRC 1082 (KLR)

Industrial Court (Employment and Labour Relations Court)
22 May 2015
1,800 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Two former police officers, interdicted on 27.06.2005 and dismissed on 30.03.2010, sued for reinstatement with full salary and benefits, damages for wrongful dismissal, costs and interest. The case was determined on documents and pleadings by consent, with two issues: whether the termination was unfair, and whether the claimants were entitled to the reliefs sought. The court noted that the High Court in judicial review proceedings (W. Karanja J., ruling of 27.09.2010) had already found the dismissal unlawful for being effected in disobedience of stay orders issued at the leave stage, and had quashed the orderly room proceedings by certiorari. That finding was never reviewed or appealed, so the court adopted it and held the dismissal unfair, declining to revisit the merits as an inquiry would be superfluous. On remedies, reinstatement was declined given the lapsed time, lost training and promotion opportunities, and the undesirable prospect of the claimants serving under substantially junior officers. The court instead awarded each claimant the withheld half salary for 57 months of interdiction (Kshs.710,647.50), 12 months' salary as compensation for the unfair termination aggravated by breach of the stay order (Kshs.299,220.00), and full pay for 61 months from dismissal to judgment (Kshs.1,521,035.00), totalling Kshs.2,530,902.50 each, payable by 1.08.2015 with interest on default. Each claimant was further deemed to have served without break and to have retired under the 50 years' rule effective 22.05.2015 with full pension benefits under the Pensions Act. Judgment was entered for the claimants against the respondents.

Key legal issues

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01

Whether the claimants' dismissal was unfair

Holding

The dismissal was unfair and unlawful, being in disobedience of stay orders issued at the leave stage of judicial review proceedings, a finding never reviewed or set aside on appeal

Reasoning

The High Court in the cited judicial review ruling had already found the dismissal unlawful for breaching stay orders stopping the disciplinary proceedings, and quashed the orderly room proceedings by certiorari. That decision stood unreviewed and unappealed. Since the facts, law and parties had not changed, the court declined to revisit the merits as such an inquiry would be superfluous and bound itself by the existing finding.

p. 2
02

Whether reinstatement was an appropriate remedy

Holding

Reinstatement declined due to lapsed time, lost opportunities, and the police command structure

Reasoning

The court weighed the long period out of work since interdiction in 2005 and dismissal in 2010, lost training and promotion opportunities, and the fact that reinstated claimants might have to serve under officers substantially their juniors, which it found undesirable in the ranking and command structure of the Police Service. It therefore found reinstatement neither convenient nor just.

p. 3
03

What monetary remedies were due

Holding

Withheld half salary of Kshs.710,647.50, 12 months' salary compensation of Kshs.299,220.00, and 61 months' full pay of Kshs.1,521,035.00 per claimant, totalling Kshs.2,530,902.50 each

Reasoning

The court awarded the withheld half salaries for the 57 months of interdiction, 12 months' salary as compensation for unfair termination (aggravated by breach of the stay order and the claimants' long service), and full pay for the 61 months from dismissal to judgment, applying its opinion that an employee is entitled to pay for the period kept away from work by unlawful termination, on the basis of partial reinstatement and legitimate expectation to return to work.

p. 4
04

Whether the claimants should be deemed to have retired with pension benefits

Holding

Claimants deemed to have retired under the 50 years' rule effective the judgment date with full pension benefits

Reasoning

Given the claimants' long police service, their attainment of age 50, the illegality of the termination and the decline of reinstatement, the court found it just to deem them to have retired with unbroken service from their appointment dates, with pension computed under the Pensions Act and regulations.

p. 4

Legal principles established

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  • A valid finding by a court of competent jurisdiction that a dismissal was unlawful binds subsequent proceedings between the parties absent review or appeal
  • An employee unlawfully or unfairly suspended or terminated is entitled to pay for the period kept away from work, as partial reinstatement by compensation, subject to exceptions of other gainful employment or failure to exculpate

Court orders

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  1. 1.Declaration that the termination of the claimants' employment as police officers was unlawful and unfair
  2. 2.The respondents to pay each claimant Kshs.2,530,902.50 by 1.08.2015, failing which interest at court rates till full payment
  3. 3.Each claimant deemed to have served without a break in the Police Service from the respective date of appointment and deemed to have retired under the 50 years' rule with effect from 22.05.2015, with full pension benefits per the Pensions Act and regulations

Authorities

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Legislation

  • Police Act, Cap. 84 Laws of Kenyasection 44
  • Employment Actsubsection 49(4)(f)
  • Pensions Act and regulationsNot specified

Cases cited (2)

  • Sammy Bentley Aluso and Another v The Commissioner of Police and 2 Others
    Judicial Review Application No. 22 of 2009 at Embu
  • Kenya Union of Printing, Publishing, Paper Manufacturers and Allied Workers v Timber Treatment International Limited
    [2013]eKLR, Industrial Cause No. 21 of 2012 at Nakuru
Jurisdiction invoked
Employment and labour relations jurisdiction (Industrial Court); judgment does not cite a specific constitutional provision

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, "Sammy Bently Aluso & another v Commissioner of Police & another [2015] KEELRC 1082 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1082/eng@2015-05-22

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