Sammy Bently Aluso & another v Commissioner of Police & another [2015] KEELRC 1082 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the claimants' dismissal was unfair
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
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.
Whether reinstatement was an appropriate remedy
Reinstatement declined due to lapsed time, lost opportunities, and the police command structure
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.
What monetary remedies were due
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
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.
Whether the claimants should be deemed to have retired with pension benefits
Claimants deemed to have retired under the 50 years' rule effective the judgment date with full pension benefits
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.
Legal principles established
#- 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
#- 1.Declaration that the termination of the claimants' employment as police officers was unlawful and unfair
- 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.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
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Industrial Court); judgment does not cite a specific constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.