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ELRCDismissedPetition of 31st January 2017 (number not stated in judgment)· [2018] KEELRC 1822 (KLR)

Biketi Wangila v National Police Service Commission [2018] KEELRC 1822 (KLR)

Employment and Labour Relations Court
14 May 2018
NMNzioki wa Makau
2,029 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A former police officer's challenge to his dismissal failed because he waited over seven years to go to court, despite the Employment and Labour Relations Court noting his fair-hearing complaints.

What this practically means

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Executive summary

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The Petitioner, a former police constable dismissed in July 2010 after orderly room proceedings over alleged bribery, petitioned the court for declarations that his dismissal and the handling of his appeal violated his constitutional rights, an order of certiorari to quash the decisions of 1st July 2010 and 4th September 2012, revocation of the dismissal, payment of accrued salary and benefits, and costs. The Respondent filed no response and the petition was heard undefended on 21st February 2018. The Petitioner testified that the same officer investigated, prosecuted, heard and convicted him in the orderly room proceedings; that his witness was denied a chance to testify; that he was never given the dismissal letter; and that the outcome of his appeal was only communicated in May 2014 after Ombudsman intervention, without him ever appearing before the appeal board. He cited authorities on natural justice, bias and fair administrative action, including Emmanuel Nyiro Chai, Ernst & Young and Charles Kiranga Anumba. The court, however, took the view that the Petitioner had known the foundation of his claim since July 2010 yet waited over seven years before filing the petition, a delay it described as unconscionable. Relying on the Court of Appeal's decision in Maurice Adongo Anyango and the Karume principle, it held that certiorari is discretionary and that where a clear procedure for redress exists it must be strictly followed, the specialized employment court being the proper forum. The petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the orderly room proceedings and dismissal violated natural justice and Articles 47 and 50

Holding

The court did not reach the merits; the petition was dismissed for unconscionable delay despite the arguments raised

Reasoning

The Petitioner argued that the presiding officer was investigator, prosecutor and judge, offending the rule against bias, citing Emmanuel Nyiro Chai and Ernst & Young. The court acknowledged the authorities but held that the decisive factor was the Petitioner's delay of over seven years in filing the petition and his failure to follow the appropriate procedure for employment grievances.

p. 3
02

Whether the delay in filing the petition defeated the claim

Holding

The delay of over seven years from the July 2010 dismissal to the petition was fatal

Reasoning

The court noted the Petitioner knew of the dismissal on 26th July 2010, appealed, and received the appeal outcome in 2014, yet waited until 2017 to petition. Relying on Maurice Adongo Anyango and Sanghani, it held that where a clear procedure exists it must be strictly followed, and that the specialized employment court was the proper forum.

p. 3

Legal principles established

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  • Certiorari is a discretionary remedy which a court may refuse even where grounds exist, and where a clear procedure for redress is prescribed it should be strictly followed
  • A claimant cannot use a constitutional petition to circumvent the appropriate specialized forum and limitation for employment claims

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 47, 47(1), 50, 50(2); Chapter 10

Cases cited (8)

  • Emmanuel Nyiro Chai v National Police Commission & 3 Others
    [2017] eKLR
  • King Woolen Mills Ltd formerly known as Manchester Outfitters Suiting Division Ltd & Another v Standard Chartered Financial Services Ltd & 2 Others
    [1995] eKLR
  • Ernst & Young LLP v Capital Markets Authority & Another
    [2017] eKLR
  • Joseph Mwendwa Mbuko v Provincial Police Officer, Central Police & 2 Others
    [2013] eKLR
  • Charles Kiranga Anumba v National Police Service Commission & Another
    [2015] eKLR
  • Maurice Adongo Anyango v Kenyatta International Convention Centre
    [2018] eKLR
  • Sanghani (cited within Maurice Adongo Anyango)
  • Speaker of the National Assembly v Karume
    (supra)
Jurisdiction invoked
Articles 22 and 23 of the Constitution, invoked by the Petitioner (Chapter 10 also cited in the relief)

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, "Biketi Wangila v National Police Service Commission [2018] KEELRC 1822 (KLR)", Case Analysis (2018). Petition of 31st January 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1822/eng@2018-05-14

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