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ELRCPartially AllowedCause No. 1785 of 2013· [2018] KEELRC 210 (KLR)

Sylvester Kioko Maitha v Commissioner of Police & another [2018] KEELRC 210 (KLR)

Employment and Labour Relations Court of Kenya
20 December 2018
HWHellen S. Wasilwa
2,180 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 won Kshs 2 million after the court found his dismissal was based on duties he was never actually assigned.

What this practically means

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Executive summary

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The Claimant, a former Police Constable, was dismissed from the Kenya Police Force after orderly room proceedings found him guilty of an act prejudicial to good order and discipline - complicity in the theft of a VHF radio from Reuben Police Post on the night of 7 September 2003, by allegedly misleading PC Waringa that he would take charge of the report office. The claim, initially filed as CMCC No. 12265/06 before the CM's Court Nairobi, was transferred to the ELRC and registered as Cause No. 1785 of 2013. The Claimant sought declarations that his dismissal was unlawful, quashing of the dismissal, reinstatement, damages and costs, relying on Articles 22, 23, 27, 47 and 50 of the Constitution. The Respondents maintained that the dismissal was lawful, that fair procedure under Article 47 and Section 41 of the Employment Act was followed, and that the claim for reinstatement was time-barred. The court framed three issues: valid reasons, due process, and remedies. It found the dismissal letter was premised on a factual error - the Claimant was on patrol duties, not guarding the post - so there were no valid reasons for dismissal, and the allegation of failing to wake PC Waringa was not his duty. Due process was found to have been followed, but the dismissal was unfair and unjustified. The court awarded the Claimant Kshs 2 million in damages for unfair dismissal, with costs and interest at court rates from the date of judgment. The Claimant was represented in person; the Respondents by Oyugi.

Key legal issues

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01

Whether there were valid reasons to warrant dismissal of the Claimant

Holding

No valid reasons existed; the Claimant was on patrol duties, not guarding the report office, so he could not be guilty of complicity for not waking up PC Waringa

Reasoning

The orderly room proceedings placed the Claimant and colleagues on patrol duties while PC Waringa manned the report office. The dismissal letter alleged he was assigned guard duties, which the evidence disproved. The Claimant's testimony was corroborated by CW2 and by PW1 in the proceedings. A person cannot be held complicit in failing to perform a duty never allocated to him.

p. 3
02

Whether due process was followed

Holding

Due process was followed in the conduct of the orderly room proceedings, but the finding of guilt was itself unfounded

Reasoning

The court found the proceedings themselves complied with procedure, but the charge the Claimant was convicted of - failing to wake PC Waringa - was not his duty since he was on patrol. The dismissal was therefore unfair and unjustified despite procedural compliance.

p. 3
03

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded damages of Kshs 2 million for unfair dismissal plus costs and interest; reinstatement and declarations were not granted

Reasoning

Having found the dismissal unfair and unjustified, the court exercised its remedial discretion under the Employment Act framework to award compensatory damages rather than reinstatement, noting the respondents' argument that reinstatement was time-barred.

p. 3

Legal principles established

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  • An employee cannot be faulted for duties not allocated to him; a dismissal founded on a misdescription of duties is without valid reason

Court orders

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  1. 1.Award of damages for unfair dismissal equivalent to Kshs 2 million
  2. 2.Respondents to pay costs of the suit
  3. 3.Interest on the award at court rates with effect from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1), 23(1), 27(1), 47(1), 50(1) and (2)
  • Fair Administrative Action ActSection 4
  • Employment ActSections 41, 43, 49
  • Police RegulationsRegulation 3 sub (41)

Cases cited (3)

  • Joseph Mwenda Mbuko vs Provincial Police Officer and 2 Others
    High Court at Meru Petition 5 of 2011
  • Judicial Service Commission vs Gladys Boss Shollei & Another
    Civil Appeal No. 50 of 2014
  • Michael Dowling vs Work Place Safety and Insurance Board
    [2004] CAN LII 43692
On appeal from
CM's Court Nairobi
CMCC No. 12265/06
Jurisdiction invoked
Transferred to the Employment and Labour Relations Court on 23/11/2012 and registered as ELRC Cause No. 1785 of 2013 (employment and labour relations jurisdiction)

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, "Sylvester Kioko Maitha v Commissioner of Police & another [2018] KEELRC 210 (KLR)", Case Analysis (2018). Cause No. 1785 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/210/eng@2018-12-20

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