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ELRCAllowedPetition dated 21st March 2013, filed 14th May 2013· [2015] KEELRC 1627 (KLR)

Charles Kinanga Arumba v National Police Service Commission & another [2015] KEELRC 1627 (KLR)

Employment and Labour Relations Court
28 August 2015
MNMathews Nderi Nduma
1,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A police officer unfairly dismissed for leaving his post during a family emergency won reinstatement with full pay after the court found his dismissal unconstitutional.

What this practically means

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Executive summary

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The Petitioner, a police constable employed on 1st September 1998 and attached to the General Service Unit, was dismissed following orderly room proceedings instituted after he left his duty post at the United States Embassy, Gigiri on 6th December 2004 to attend his wife, who had suffered pregnancy complications resulting in the death of their child. He claimed he had permission from his immediate senior, Corporal Thomas Nyaga, to whom he surrendered his firearm. Charged with leaving his place of duty before being regularly relieved, he was dismissed with effect from 9th December 2004 after proceedings held on 8th December 2004. His appeal lodged on 12th December 2004 was only determined on 22nd March 2012, some eight years later. He petitioned for a declaration that his dismissal was unconstitutional, reinstatement, and quashing of the proceedings. The Respondents admitted the employment particulars but maintained that he absconded contrary to Police Regulations, that orderly room proceedings, conviction and dismissal were proper, and that the appeal was duly considered and disallowed, the Commissioner of Police being the final appellate authority under Section 108 of the Police Act (Repealed). The court framed two issues: whether the administrative action was expeditious, efficient, lawful, reasonable and procedurally fair under Article 47, and the appropriate remedy. It found the Petitioner's evidence of permission uncontroverted, held he was not given adequate notice and his defence was not considered, and that the eight-year delay in determining the appeal was a complete negation of Article 47 and violated Article 50(1). The petition was upheld: the dismissal was declared unconstitutional, the Petitioner reinstated as a corporal without loss of remuneration and benefits, the orderly room proceedings, dismissal and appeal quashed, with reinstatement within thirty days and costs to the Respondents.

Key legal issues

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01

Procedural fairness of the orderly room proceedings under Article 47

Holding

The proceedings were unfair: the Petitioner lacked adequate notice of the charge and his defence (permission from Corporal Thomas Nyaga to attend a family emergency) was never considered or controverted.

Reasoning

The Respondent's Replying Affidavit made no comment on the Petitioner's defence, and no minutes of the orderly room proceedings were produced to show the defence was considered. Uncontroverted evidence is taken as true. The offence was not one of strict liability, so proceeding without considering a lawful defence was unlawful and denied the Petitioner a fair hearing.

p. 4
02

Inordinate delay in determining the disciplinary appeal

Holding

The approximately eight-year delay by the Commissioner of Police in determining the appeal lodged on 12th December 2004 and decided on 22nd March 2012 violated Articles 47 and 50(1) of the Constitution.

Reasoning

It was admitted the appeal was lodged within the seven-day window on 12th December 2004 and the outcome was communicated on 22nd March 2012. The court found the delay a complete negation of Article 47 and a violation of the Article 50(1) right to a fair hearing before an independent and impartial body, leaving the Petitioner in limbo for eight years.

p. 4

Legal principles established

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  • Orderly room proceedings are criminal in nature and lawful defences are available; an employer may not proceed as if no defence were possible.
  • An inordinate delay of approximately eight years in determining a disciplinary appeal violates the right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action under Article 47.
  • Failure to serve notice of charges and failure to consider a defence renders the hearing unfair.
  • Armed forces employment must be founded on fairness, humaneness and justice.

Court orders

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  1. 1.The dismissal of the Petitioner from his duties was declared unconstitutional and the Petitioner to be reinstated without loss of any remuneration and benefits to his place of work as a corporal.
  2. 2.The orderly room proceedings, the subsequent dismissal and Appeal proceedings are quashed.
  3. 3.The Respondents to jointly and severally ensure that the petitioner returns to work within thirty (30) days from the date of the judgment.
  4. 4.The Respondents to pay costs of the suit.

Authorities

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Legislation

  • Constitution of Kenya 2010Article 47
  • Constitution of Kenya 2010Article 50(1)
  • Police Act, Cap 84 (Repealed)Section 108
Jurisdiction invoked
Article 47 and Article 50(1) of the Constitution of Kenya 2010 (constitutional petition on unfair dismissal and administrative action)

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, "Charles Kinanga Arumba v National Police Service Commission & another [2015] KEELRC 1627 (KLR)", Case Analysis (2015). Petition dated 21st March 2013, filed 14th May 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1627/eng@2015-08-28

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