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ELRCPartially AllowedCause No. 2261 of 2014· [2018] KEELRC 1967 (KLR)

Yusto Opiyo Onyango v National Police Service Commission & 2 others [2018] KEELRC 1967 (KLR)

Employment and Labour Relations Court of Kenya
27 April 2018
2,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, an Administration Police officer recruited in 1997 and rose to Chief Inspector, sued for terminal dues for unfair, wrongful and unlawful dismissal, reinstatement and pay in lieu of notice after being summarily dismissed with effect from 23rd April 2014 vide a letter dated 20th August 2014 signed by the Deputy Inspector General of Administration Police. He was dismissed while on approved annual leave following his arrest over allegations of theft of an imprest of Kshs. 1,955,000 meant for officers on operation at Samburu North (Baragoi). The Respondents justified the dismissal on six disciplinary counts under the Eighth Schedule of the National Police Service Act. The court framed three issues: valid reasons, due process and remedies. On reasons, although the alleged lawful order was never exhibited and the absence count was contradicted by approved leave, the court found valid reasons existed under Section 43 of the Employment Act since the Claimant admitted receiving the imprest and had no proof he handed it over. On due process, an NPSC witness confirmed the dismissal was effected by the National Police Service without reference to the Commission, the constitutionally mandated disciplinary organ, and while investigations were incomplete; the dismissal was therefore procedurally defective and declared unfair under Section 45(2). Reinstatement was refused as the three-year window under Section 12 of the Employment and Labour Relations Act had lapsed. The court converted the summary dismissal to a normal termination and awarded notice pay, unpaid salary of Kshs. 310,080, full pension, salary from dismissal to judgment, and costs.

Key legal issues

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01

Whether there were valid reasons to warrant dismissal

Holding

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

Reasoning

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.

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02

Whether due process was followed before dismissal

Holding

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

Reasoning

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.

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What remedies are available

Holding

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

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.Conversion of the summary dismissal to a normal termination
  2. 2.One month's salary in lieu of notice
  3. 3.Payment of salary unpaid from date of suspension to date of dismissal being Kshs. 310,080
  4. 4.Full payment of pension under the Pension Act from the date of employment to the date of judgment
  5. 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. 6.Costs of the claim to the Claimant

Authorities

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Legislation

  • Constitution of Kenya 2010Article 246(3)
  • National Police Service ActSections 88(2), 89(1), 89(1)(f), Eighth Schedule
  • National Police Service Commission Act 2011Section 10
  • Employment Act 2007Sections 43, 45(2)
  • Employment and Labour Relations ActSection 12
  • Code of Regulations (Revised 2006)N.3(4)
  • Pension Act
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.