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ELRCAllowedPetition filed 15th December 2014 (number not stated in judgment)· [2017] KEELRC 1726 (KLR)

Emmanuel Nyiro Chai v National Police Commission & 3 others [2017] KEELRC 1726 (KLR)

Employment and Labour Relations Court
24 February 2017
MNMathews Nderi Nduma
2,062 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan police officer unfairly dismissed after biased disciplinary proceedings won reinstatement, full back pay with interest, and costs.

What this practically means

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Executive summary

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This is an unopposed constitutional petition before the Employment and Labour Relations Court at Nairobi, determined by Mathews Nderi Nduma, Principal Judge, on 24th February 2017. The petitioner, a former police Sergeant in the National Police Service, challenged his dismissal from the Kenya Police following Orderly Room Proceedings held in March 2011 over the loss of a G3 magazine with 19 rounds of ammunition while he was NCO in charge of the Armoury. The respondents were served with the petition and appeared through State Counsel on several occasions but filed neither appearance nor response, prompting the court to determine the petition on the pleadings, affidavits and the petitioner's submissions under Rules 15, 16 and 21 of the applicable procedure rules. The court found that the petitioner's superiors acted as complainants, investigators and judges; that no officer was summoned to present evidence; that the petitioner was denied representation, witnesses and access to the certified record of proceedings; and that the waiver notice, proceedings, sentence and dismissal were procedurally defective. Holding that any decision made in violation of natural justice is a nullity, the court declared violations of the petitioner's rights under Articles 23, 27, 41, 47 and 50 of the Constitution, quashed the decision discharging him from the Kenya Police Force, ordered his reinstatement without loss of seniority and remuneration, awarded his salary from March 2011 with interest at court rates, and awarded costs to follow the outcome.

Key legal issues

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01

Whether the petitioner's dismissal following the Orderly Room Proceedings breached natural justice and fair administrative action

Holding

Yes - the proceedings were flawed in procedure, the superiors were complainants, investigators and judges, and the dismissal violated Articles 41, 47 and 50 of the Constitution.

Reasoning

The court found the petitioner's superiors acted as complainants, investigators and judges, breaching the rule against bias. No officer was summoned to present the case as required by the Force Standing Orders, and the petitioner was not allowed representation or to call witnesses. The proceedings were therefore procedurally defective and tainted with illegality, irrationality and procedural impropriety, warranting quashing of the dismissal.

p. 4
02

Whether the petition could be determined unopposed in the respondents' absence

Holding

Yes - the court determined the petition on the pleadings, affidavits, documents and petitioner's submissions under Rules 15, 16 and 21.

Reasoning

Despite service and numerous court appearances by State Counsel, the respondents filed neither appearance nor response. Under Rule 16 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, the court may hear and determine the petition in the respondent's absence. The court considered the petition, verifying affidavit, attachments and the petitioner's submissions.

p. 5

Legal principles established

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  • Any decision made in violation of the principle of natural justice is a nullity and ought to be quashed.
  • Disciplinary proceedings where a complainant's superior acts as investigator and judge offend natural justice.
  • Where a respondent fails to respond within the time stipulated, the court may hear and determine the petition in the respondent's absence.

Court orders

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  1. 1.A declaration that the petitioner's fundamental rights under Articles 23(1) and (3) 3(c), 27(1)(2) and (4), 47(1), 2 and 3, 50(1) and 2 of the Constitution of Kenya 2010 were violated by conduct of the Orderly Room Proceedings of 22nd March 2011 which was flawed in procedure
  2. 2.A declaration that the sentence imposed by the Commandant upon the petitioner violated his fundamental rights under Articles 41(1), 4(1) and 50 of the Constitution of Kenya 2010
  3. 3.The decision of the Police Commission discharging the petitioner from the Kenya Police Force is hereby quashed
  4. 4.The petitioner be and is hereby reinstated into the Kenya Police Service without loss of seniority and remuneration forthwith
  5. 5.The petitioner be paid his salary from March 2011 to date plus interest thereon at court rates till payment in full
  6. 6.Costs to follow the outcome

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 23(1) and (3)(c), 27(1)(2) and (4), 35, 41(1), 47(1)(2) and (3), 50(1) and (2), 245
  • National Police Service Act 2011Section 34, Section 83(4)
  • Employment and Labour Relations Court (Procedure) RulesRule 21
  • Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules 2013Rules 15 and 16
  • Police RegulationsRule 3(24)
  • Kenya Police Force Standing OrdersChapter 29, Section 16(v)

Cases cited (2)

  • Republic versus Minister for Internal Security and Provincial Administration and 4 others ex parte CPL James Mwika
    (2013)
  • Pepstale versus Kabaka District Local Government count and others
    (2008) 2 EA 300
Jurisdiction invoked
Article 23 of the Constitution of Kenya 2010 (enforcement of Bill of Rights); Employment and Labour Relations Court (Procedure) Rules Rule 21; Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules 2013, Rules 15 and 16

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Emmanuel Nyiro Chai v National Police Commission & 3 others [2017] KEELRC 1726 (KLR)", Case Analysis (2017). Petition filed 15th December 2014 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1726/eng@2017-02-24

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