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ELRCPartially AllowedPetition 61 of 2015· [2018] KEELRC 1016 (KLR)

Corporal Thomas Othoo v National Police Service Commission & 3 others [2018] KEELRC 1016 (KLR)

Employment and Labour Relations Court of Kenya
28 September 2018
2,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court overturned a police officer's dismissal because he was disciplined without being heard, but ordered a fresh hearing rather than reinstatement.

What this practically means

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Executive summary

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The petitioner, a police investigator, was served with a waiver notice at 10.00 am on 5th August 2014 requiring him to appear before a presiding officer at 8.30 am the same day for an Orderly Room Proceeding on the charge of discharging a weapon without orders. He did not appear, was hospitalised, and was tried in absentia, resulting in his dismissal from the National Police Service with effect from 2nd June 2015. He petitioned the Employment and Labour Relations Court alleging breach of the right to a fair hearing, unfair labour practices, and irregularities in the disciplinary process, including that the waiver notice was signed by a non-gazetted officer. The respondents opposed the petition, contending that it was premature because the petitioner's appeal was pending before the National Police Service Commission, that the petitioner deliberately absented himself, and that the trial in absentia was conducted under the Force Standing Orders. The court had earlier stayed the petition for 90 days to allow the appeal to be determined; the appeal remained undetermined for over two years, and the stay was lifted on 13th April 2017. The court held that the requirement to exhaust internal mechanisms cannot be used to indefinitely keep an aggrieved party from court, and that inordinate delay defeats a prematurity objection. On the merits, the court found the disciplinary process violated the rules of natural justice, the petitioner having been condemned unheard. The court overturned the dismissal, ordered a fresh hearing in accordance with the Force Standing Orders, and awarded the petitioner costs of the petition.

Key legal issues

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01

Prematurity and exhaustion of internal remedies

Holding

The court was no longer prevented from hearing the petition because the appeal to the NPSC had not been determined for over two years despite a stay order.

Reasoning

The court had on 19th February 2016 stayed the petition for 90 days to allow the NPSC to determine the petitioner's appeal. The period lapsed without any outcome, and the matter was mentioned severally without progress. By 13th April 2017 the stay was lifted. The court affirmed that exhaustion of internal mechanisms is required but cannot be used to indefinitely bar access to court; where there is inordinate delay or dilatoriness, prematurity is no longer available as a defence.

p. 6
02

Right to a hearing / natural justice in disciplinary proceedings

Holding

The Orderly Room Proceedings violated the rules of natural justice because the petitioner was condemned unheard, having been tried in absentia.

Reasoning

The petitioner was served with a waiver notice requiring him to appear one and a half hours before the time of service, was hospitalised, and never participated in the proceedings conducted between 7/8/2014 and 18/9/2014. The court held the right to be heard is fundamental, codified in the Constitution and the Fair Administrative Action Act, and was not persuaded that the petitioner deliberately refused to attend the proceedings.

p. 6
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Legality of the dismissal

Holding

The dismissal was set aside as it was founded on a flawed disciplinary process, with a fresh hearing ordered.

Reasoning

Because the Orderly Room Proceedings were conducted in breach of natural justice, the dismissal flowing from them could not stand. The court overturned the dismissal but rather than ordering outright reinstatement, directed a fresh disciplinary hearing conducted in accordance with the Force Standing Orders, thereby preserving the respondents' ability to retry the matter lawfully.

p. 6

Legal principles established

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  • The right to be heard is a fundamental principle of natural justice codified in the Constitution and the Fair Administrative Action Act.
  • Inordinate delay or dilatoriness in exhausting internal dispute resolution mechanisms disentitles a respondent from pleading prematurity of court intervention.
  • The requirement to exhaust internal mechanisms cannot be used to indefinitely keep an aggrieved party away from the court.

Court orders

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  1. 1.The petitioner's dismissal from the National Police Service is overturned on the basis of the flawed Orderly Room Proceedings
  2. 2.A fresh hearing of the disciplinary matter in accordance with the Force Standing Orders
  3. 3.The petitioner shall have costs of the petition
Jurisdiction invoked
Article 23 of the Constitution (petition for enforcement of fundamental rights); National Police Service Act, 2011

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 [2018] KEELRC 1016 (KLR)", Case Analysis (2018). Petition 61 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1016/eng@2018-09-28

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