Yusto Opiyo Onyango v National Police Service Commission & 2 others [2018] KEELRC 1967 (KLR)
The bottom line
#Kenya's Employment Court ruled a police officer's dismissal unfair because the National Police Service disciplined him without involving the National Police Service Commission.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to warrant dismissal
Valid reasons existed within the meaning of Section 43 of the Employment Act, notably the unexplained receipt and non-payment of Kshs. 1,955,000 imprest
The court examined the six counts in the dismissal letter. The order said to have been disobeyed was not exhibited, and the absence-from-duty count was contradicted by approved leave. However, the Claimant admitted receiving the imprest of Kshs. 1,955,000 and had no evidence he handed it over to Rukwaro, and Respondents' witnesses confirmed the money was never paid to intended recipients. That was sufficient to constitute reasons warranting dismissal under Section 43 of the Employment Act 2007.
Whether due process was followed before dismissal
No due process was followed because the dismissal was effected by the National Police Service through the Deputy Inspector General without reference to the National Police Service Commission, the constitutionally mandated disciplinary organ
RW4 of the NPSC testified that disciplinary control over police officers rests with the Commission, that the dismissal letter was signed by the Deputy Inspector General without citing any Commission authority, and that the Commission only learned of the matter after the dismissal and found the Service acted without authority while investigations were incomplete. The court held the organ acted without jurisdiction, rendering the dismissal null, and declared the dismissal unfair and unjustified under Section 45(2) of the Employment Act.
What remedies are available
Reinstatement refused as time-barred; dismissal converted to a normal termination with notice pay, unpaid salary, pension and salary from dismissal to judgment, plus costs
Because the dismissal was unfair, the court invoked its remedial discretion. Reinstatement under Section 12 of the Employment and Labour Relations Act was no longer available since more than three years had elapsed since the August 2014 dismissal. The court instead converted the summary dismissal to a normal termination, entitling the Claimant to notice pay, unpaid salary of Kshs. 310,080, full pension benefits, and salary from dismissal to judgment as if service had continued unbroken.
Legal principles established
#- Where a constitutional organ proceeds to act without jurisdiction, its act or omission is null and void
- A termination is unfair where the employer fails to prove a valid and fair reason and that fair procedure was followed, per Section 45(2) of the Employment Act
- Disciplinary control and removal of police officers vests in the National Police Service Commission, and a dismissal effected by the Service without reference to the Commission is procedurally defective
Court orders
#- 1.Conversion of the summary dismissal to a normal termination
- 2.One month's salary in lieu of notice
- 3.Payment of salary unpaid from date of suspension to date of dismissal being Kshs. 310,080
- 4.Full payment of pension under the Pension Act from the date of employment to the date of judgment
- 5.The Claimant deemed to have served without a break in service up to the date of judgment and entitled to payment of all salary from date of dismissal to the date of judgment
- 6.Costs of the claim to the Claimant
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Act (employment and labour relations disputes); claims founded on the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samson Leteipa Ole Kimongo v Inspector General, National Police Service & 2 others [2022] KEELRC 1034 (KLR)[2022] KEELRC 1034 (KLR)20 Jan 2022
- Samuel Murathi Gatuua v Commissioner General of Prisons & 3 others [2022] KEELRC 1059 (KLR)[2022] KEELRC 1059 (KLR)18 Jan 2022
Cite this brief
#Cite this brief
Caselaw, "Yusto Opiyo Onyango v National Police Service Commission & 2 others [2018] KEELRC 1967 (KLR)", Case Analysis (2018). Cause No. 2261 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1967/eng@2018-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.