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ELRCPartially AllowedPetition No. 49 of 2017· [2018] KEELRC 1556 (KLR)

Kennedy Odhiambo Owino v National Police Service Commission & 3 others [2018] KEELRC 1556 (KLR)

Employment and Labour Relations Court of Kenya
11 June 2018
HWHellen S. Wasilwa
3,570 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, a former Administration Police Graduate Constable, was dismissed from the National Police Service on 15th September 2014 by a letter signed by the Deputy Inspector General (Administration Police Service) while undergoing a cadets' promotion course, on grounds including disobeying lawful orders and failing to attend Orderly Room proceedings. He appealed to the National Police Service Commission, which disposed of the appeal in his favour, but the outcome was never communicated to him and the Service refused to reinstate him. The Petitioner petitioned the Employment and Labour Relations Court seeking declarations that the dismissal was illegal and unconstitutional, that his rights to fair hearing, fair labour practices, fair administrative action, access to information and dignity were infringed, and orders of certiorari, reinstatement, promotion and damages. The Commission conceded that the Service acted ultra vires in dismissing the Petitioner without its approval, while the 2nd, 3rd and 4th Respondents maintained the dismissal followed lawful disciplinary proceedings. The court held that Article 246(3) vests exclusive jurisdiction to dismiss members of the National Police Service in the Commission, and that a dismissal letter emanating from an officer of the Service was issued by a source without authority, rendering the decision a nullity. The court also found that the Commission failed to discharge its mandate by not considering and communicating the appeal outcome. Judgment was entered for the Petitioner with declarations, all withheld salaries and benefits from September 2014, damages of Kshs. 3 million for loan recall and CRB listing, 12 months' salary (Kshs. 781,152) for unlawful termination, pension earned to date, and costs borne by the Respondents. Reinstatement and promotion were not expressly ordered.

Key legal issues

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01

Authority to dismiss members of the National Police Service

Holding

The dismissal was unlawful, unfair and ultra vires because the power to remove officers vests exclusively in the National Police Service Commission under Article 246(3)

Reasoning

Article 246(3) of the Constitution vests disciplinary control and removal of officers in the National Police Service Commission. The dismissal letter was authored by the Deputy Inspector General (AP) of the National Police Service, not the Commission. The Commission itself conceded the Service acted ultra vires. A dismissal by a body without power is null and void, and the Commission failed to consider or communicate the outcome of the Petitioner's appeal.

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02

Failure to consider and communicate the outcome of the appeal

Holding

The Commission infringed the Petitioner's rights to fair labour practices, fair administrative action and access to information under Articles 41, 47 and 35(1)

Reasoning

The Petitioner appealed on 22/9/2014 to the Chairman of the Commission, which disposed of the appeal but never communicated the outcome to him. Despite directions to the Service to communicate the resolution and reinstate him, the Service failed to comply. The court held that the failure to consider and communicate the appeal infringed the Petitioner's constitutional rights.

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03

Remedies for the unlawful termination

Holding

The Petitioner was awarded withheld salaries and benefits, Kshs. 3 million damages for loan recall and CRB listing, 12 months' salary as damages for unlawful termination, and pension earned

Reasoning

Having found the termination unlawful and the Petitioner's case established, the court granted monetary reliefs: all withheld salaries and benefits from September 2014, special damages of Kshs. 3 million for losses upon recall of loans and CRB listing, 12 months' gross salary (Kshs. 781,152) for unlawful termination, plus pension and costs borne by the Respondents.

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Legal principles established

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  • Only the National Police Service Commission has exclusive jurisdiction to dismiss members of the National Police Service
  • A dismissal effected by an officer without authority is a nullity

Court orders

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  1. 1.Declaration that termination of the Petitioner's services by the National Police Service was illegal and unconstitutional since termination of members of the National Police Service is exclusively within the domain of the 1st Respondent
  2. 2.Declaration that the 1st Respondent failed to discharge its mandate by failing to consider the Petitioner's appeal and submit the results thereof, infringing his rights under Articles 41, 47 and 35(1) of the Constitution
  3. 3.Order directing the Respondents to pay the Petitioner all his withheld salaries and benefits from September 2014 to date
  4. 4.Order that the Respondents pay the Petitioner damages equivalent to Kshs. 3 million for losses suffered upon his loans being recalled by banks and listing on the CRB
  5. 5.Order that the Respondents pay the Petitioner damages equivalent to 12 months' salary for unlawful termination (12 x 65,096 = 781,152)
  6. 6.Order that the Petitioner is entitled to any pension earned to date
  7. 7.Costs of the Petition to be borne by the Respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 23(3), 28, 35(1), 41(1) and (2)(b), 47(1), 162(1)-(3), 165(5), 246(1), 246(3)
  • National Police Service Act 2011Sections 88(2), 89(1)(e)(f), 89(5), 8th Schedule
  • National Police Service Commission Act No. 30 of 2011Section 10(1)(f)
  • National Police Service Commission (Discipline) Regulations 2015Regulation 13
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3, 4(1), 8, 10, 11, 13, 14 and 18
Jurisdiction invoked
Article 23(3) as read with Articles 162(1), (3) and 165(5) of the Constitution of Kenya 2010

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, "Kennedy Odhiambo Owino v National Police Service Commission & 3 others [2018] KEELRC 1556 (KLR)", Case Analysis (2018). Petition No. 49 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1556/eng@2018-06-11

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