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ELRCOtherPetition dated 30th June 2015· [2016] KEELRC 1668 (KLR)

Corporal Thomas Othoo v National Police Service Commission & 3 others [2016] KEELRC 1668 (KLR)

Employment and Labour Relations Court
19 February 2016
ANAbuodha J. N.
2,887 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 police officer's challenge as premature, ruling he must first finish the internal appeal of his dismissal.

What this practically means

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Executive summary

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The petitioner, an investigator in the National Police Service, was served with a waiver notice on 5th August 2014 to appear before an Orderly Room Proceeding for allegedly discharging a weapon without lawful cause. He claimed he was hospitalised and notified the presiding officers, but the proceedings were conducted in his absence between 7th and 19th August 2014, resulting in his dismissal from service with effect from 2nd June 2015. By a petition dated 30th June 2015 he sought declarations that the disciplinary process violated Articles 41, 47, 50 and 159 of the Constitution and sections 45 and 53(1)(c) of the Employment Act, a permanent injunction, and reinstatement. He argued the proceedings were conducted by an unauthorised non-gazetted officer, that he was condemned unheard, and that the 3rd respondent lacked jurisdiction to dismiss him. The respondents, through replying affidavits of Ebby Mutali and Commission Chairman Johnston Kavuludi, contended the petition was premature as the petitioner's appeal was pending before the National Police Service Commission, and that he wilfully absented himself from the proceedings. The Court held that where disciplinary mechanisms exist in an employment relationship they must be exhausted before resort to Court, and that judicial review - not a merits petition - is the proper avenue for mid-course interference. Since the petition did not invoke the Court's judicial review powers and questioned the merits of the dismissal, it was premature. The Court directed the Chair of the National Police Service Commission to hear and determine the appeal within 90 days and stayed the petition, with liberty to apply thereafter.

Key legal issues

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01

Exhaustion of internal remedies / prematurity

Holding

The petition was premature because the petitioner's appeal against dismissal was pending before the National Police Service Commission

Reasoning

The Court held that where an employment relationship provides disciplinary mechanisms, these must be followed and exhausted before resort to the Court. Since the petitioner had lodged an appeal that had not been determined, any decision by the Court would impair the objectivity of the Appeals Board. The Court can only interfere mid-course in cases of serious breach of natural justice or fundamental rights, and only through its judicial review powers, which this petition did not invoke.

p. 6
02

Scope of petition vs judicial review

Holding

A petition challenging the merits/legality of the dismissal decision, as opposed to the decision-making process, does not engage the Court's judicial review jurisdiction

Reasoning

The Court noted that judicial review is concerned with the decision-making process and not the merits of the decision, which fall within an appeal or review. The petitioner's petition questioned the merit and legality of the dismissal and did not invoke the judicial review powers of the Court, so the Court would not determine the merits of the disciplinary process on the petition.

p. 6

Legal principles established

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  • Where internal disciplinary mechanisms exist in an employment relationship, they must be exhausted before resort to the Court
  • The Court may intervene mid-course only where the internal process is in serious breach of natural justice or fundamental rights, under judicial review powers

Court orders

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  1. 1.The Chair of the National Police Service Commission directed to hear and determine the petitioner's appeal within 90 days of the judgment
  2. 2.The petition stands stayed pending the outcome of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticles 41, 47, 50, 159
  • Employment Act, 2007Sections 45, 53(1)(c)
  • National Police Service Act, 2011Section 2(1), Section 89(4), 8th Schedule
  • National Police Service Commission ActSection 34
  • Force Standing OrdersParagraph 16(iv) A

Cases cited (1)

  • Francis Mbugua v. Commissioner of Police & 2 others
Jurisdiction invoked
Constitution of Kenya, Article 162(2) (specialist court with exclusive jurisdiction over employment and labour relations matters); Employment Act, 2007; Articles 41, 47, 50 of the Constitution invoked by petitioner

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, "Corporal Thomas Othoo v National Police Service Commission & 3 others [2016] KEELRC 1668 (KLR)", Case Analysis (2016). Petition dated 30th June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1668/eng@2016-02-19

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