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ELRCDismissedPetition (filed 15 April 2016, number not stated in judgment)· [2018] KEELRC 2496 (KLR)

Corporal Andrew Arisa v National Police Service Commission & 3 others [2018] KEELRC 2496 (KLR)

Employment and Labour Relations Court
19 January 2018
RSRadido Stephen
1,424 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 dismissed a police officer's challenge to his 2008 dismissal, ruling he was properly heard and the older law applied.

What this practically means

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Executive summary

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The Petitioner, a Corporal in the Kenya Police Service, was dismissed on 4 October 2008 for acting to the prejudice of good order and discipline contrary to section 3(1) of the Police Regulations. He petitioned the Employment and Labour Relations Court in April 2016 seeking a declaration that the disciplinary proceedings and dismissal were unconstitutional for violating Articles 41, 47, 50 and 159 of the Constitution and the Employment Act, a permanent injunction against approval of the dismissal, reinstatement with salary and allowances of Kshs 5,347,200, costs and interest. He alleged that no orderly room proceedings were held, that he was not heard, that the charge sheet was defective, that sections 88 and 89 of the National Police Service Act and Force Standing Orders were not complied with, that the appeal took 8 years to determine, and that he was denied copies of the proceedings contrary to Article 35. The Respondents opposed through a replying affidavit sworn by Mary Wakuu. The court identified four issues: whether constitutional questions arose, whether the Petitioner was heard, statutory compliance, and remedies. It held the matters could have been pursued in an ordinary cause and that the pre-2010 legal framework governed. The Petitioner had signed a Waiver Notice and a Defaulter Sheet pleading guilty, so he was afforded a hearing. The appeal took about three years, not eight, and no prejudice was shown; the Article 35 claim was premature absent a formal request for proceedings. The National Police Service Act, 2011 was not in force in 2008. The Petition was dismissed with no order as to costs and the file ordered returned to Nakuru.

Key legal issues

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01

Constitutional questions vs ordinary cause

Holding

The questions raised could have been determined through an ordinary Cause; the Petition route appears chosen to avoid limitation obstacles

Reasoning

The court observed that the complaints were capable of resolution in an ordinary employment cause and that the constitutional route may have been adopted to sidestep limitation since the cause of action accrued on dismissal in 2008. Nonetheless, the court proceeded to consider the contentions.

p. 3
02

Opportunity to be heard before dismissal

Holding

Fair hearing was afforded; the Petitioner signed the Waiver Notice and the Defaulter Sheet pleading guilty

Reasoning

The record showed a Waiver Notice setting out the charge signed by the Petitioner on 1 October 2008, followed by Orderly Room proceedings the same day in which he pleaded guilty, and dismissal communicated on 4 October 2008. On that evidence the natural justice complaint failed.

p. 3
03

Delay in determining appeal and failure to furnish proceedings

Holding

Appeal took about 3 years, not 8; no prejudice shown; Article 35 claim premature absent proof of a formal request

Reasoning

The court found the appeal was notified around 2011 after the 2008 dismissal, and that the Petitioner adduced no evidence of prejudice from the delay nor of any formal application for the Orderly Room proceedings, rendering the Article 35 information claim premature.

p. 4
04

Applicable statutory framework

Holding

The National Police Service Act, 2011 did not apply to a 2008 dismissal; relevant only to an appeal still pending in 2011

Reasoning

Since the dismissal occurred in 2008, the National Police Service Act, 2011 was not in operation and could not ground the alleged wrongs. Its relevance was limited to any appeal lawfully pending by 2011.

p. 4

Legal principles established

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  • Where a cause of action accrued before the Constitution of Kenya, 2010, the matter is primarily governed by the legal framework in place at the time
  • An irregularity in notification of an appeal outcome warrants no remedy where no prejudice or injustice is demonstrated

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs
  3. 3.The file to be transmitted back to Nakuru after the judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 50, 159, 35
  • Employment Act, 2007Sections 35(1)(c), 17 (and s.45 referenced in the relief sought)
  • Police RegulationsSection 3(1)
  • National Police Service ActSections 88 and 89 (as alleged); 2011 Act on applicability
  • Force Standing Ordersnot specified
Jurisdiction invoked
Constitutional petition under Articles 41, 47, 50, 35 and 159 of the Constitution of Kenya, 2010; sections 35(1)(c) and 17 of the Employment Act, 2007 (not expressly stated as jurisdictional basis in the judgment)

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 Andrew Arisa v National Police Service Commission & 3 others [2018] KEELRC 2496 (KLR)", Case Analysis (2018). Petition (filed 15 April 2016, number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2496/eng@2018-01-19

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