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ELRCPartially AllowedPetition No. 21 of 2017· [2018] KEELRC 2527 (KLR)

Eric Sangura Nasoko v National Police Service Commission & 4 others [2018] KEELRC 2527 (KLR)

Employment and Labour Relations Court
11 July 2018
6,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that dismissing a police officer immediately after a corruption conviction, without waiting for his appeal, was unlawful and ordered his reinstatement.

What this practically means

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Executive summary

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The Petitioner, a former Police Constable, was charged in 2005 before the Anti-Corruption Court with soliciting a bribe, convicted on 3 June 2009, and dismissed from the National Police Service the following day. He appealed out of time, and by a ruling of 16 March 2016 in Nairobi High Court Criminal Appeal No. 103 of 2014 the High Court quashed the conviction, set aside the sentence and ordered a retrial on charges to be prepared by 23 March 2016. No fresh charges were ever preferred and no communication was given, prompting this petition seeking reinstatement and damages for violation of fundamental rights. The Respondents raised limitation under Section 90 of the Employment Act, denied jurisdiction and contended the retrial remained pending. The court framed four issues: limitation, breach of Sections 62 and 63 of ACECA, constitutional violations, and remedies. It found the petition not time barred, distinguishing employment-claim authority because no limitation period applies to constitutional petitions alleging fundamental-rights violations. It held the 1st Respondent breached ACECA by dismissing the Petitioner prematurely upon conviction without allowing the appeal period to lapse. It found violations of Articles 35, 43, 47 and 50 arising from the Respondents' failure to communicate any decision on charging. The court declared the rights violations, ordered mandamus directing reinstatement with effect from the date of dismissal on interdiction terms pending the charging decision, directed the DPP and EACC to decide within 30 days whether to charge, and awarded costs to the Petitioner against the Respondents.

Key legal issues

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01

Whether the petition is time barred under Section 90 of the Employment Act

Holding

The petition is not time barred; it is a constitutional petition for which no limitation period applies, and the cause of action arose in March 2016 when the conviction was quashed

Reasoning

The court distinguished Civil Appeal No. 21/2015 (Nyeri), a normal employment claim limited to 3 years by Section 90, from the present constitutional petition. Relying on Njuguna Githiru v Attorney General and the line of cases there cited, the court held there is no limitation period for enforcement of fundamental rights, subject only to considerations of inordinate delay and prejudice. The events complained of occurred in 2016, and the petition filed in March 2017 involved no inordinate delay.

p. 6
02

Whether the 1st Respondent breached Sections 62 and 63 of ACECA in dismissing the Petitioner

Holding

Yes. The dismissal was premature, effected before the appeal period expired, contrary to Sections 62 and 63 of ACECA which required suspension at half pay pending determination and continued suspension pending appeal after conviction

Reasoning

Section 62 requires a public officer charged with a corruption offence to be suspended at half pay, with the case determined within 24 months. Section 63(2) provides that a public officer ceases to be suspended if the conviction is overturned on appeal. The Petitioner was dismissed spontaneously upon conviction on 3 June 2009, before he could file any appeal and before the appeal period lapsed, contrary to Section 63(3)(a) which permits dismissal only if the appeal period expires without appeal or the conviction is upheld.

p. 7
03

Whether the Respondents violated the Petitioner's constitutional rights

Holding

Yes - rights to access to information (Article 35), fair administrative action (Article 47), fair hearing (Article 50), and economic well-being (Article 43) were infringed

Reasoning

Following the High Court's ruling of 16 March 2016 quashing the conviction and ordering a retrial, the 3rd and 4th Respondents neither preferred fresh charges nor communicated any decision not to charge, leaving the Petitioner in indefinite anxiety. The 1st Respondent could not escape responsibility for disciplinary functions on the basis that it did not exist at the material time, since Article 246(3)(b) vests it with disciplinary powers previously exercised by the Commissioner of Police.

p. 8

Legal principles established

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  • There is no limitation period for constitutional petitions alleging violation of fundamental rights, though courts may consider inordinate delay and prejudice
  • Under Section 63 of ACECA a public officer ceases to be suspended if the conviction is overturned on appeal, and a dismissal based on such a conviction is premature if effected before the appeal period is exhausted
  • Failure by State organs to communicate a decision affects a person's right of access to information under Article 35 and the right to fair administrative action under Article 47

Court orders

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  1. 1.A declaration that the Petitioner's rights enshrined in the Bill of Rights have been grossly violated and/or infringed by the Respondents especially Articles set out in the judgment
  2. 2.A declaration that failure by the 3rd and 4th Respondents to charge the Petitioner and ensure a retrial is conducted and concluded or otherwise give reasons not to charge within reasonable time as directed in Nairobi High Court 103/2014 is unlawful, illegal and a violation of the Constitution
  3. 3.An order of Mandamus directing the 1st and 2nd Respondents to reinstate the Petitioner with effect from the date of dismissal and place him on interdiction terms pending the decision on whether to charge him or not
  4. 4.The 3rd and 4th Respondents are directed to determine whether to charge the Petitioner or not within 30 days and communicate the same to the Petitioner immediately
  5. 5.Costs to be borne by the Respondents

Authorities

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Legislation

  • Police Actrepealed
  • Anti-Corruption and Economic Crimes ActSections 25, 62, 63, 63(2)
  • Constitution of Kenya, 2010Articles 23(3), 246, 246(3)(b), 35, 43, 47, 50(1) and (2), 157(6), 162(2)(a), 27, 73(1), 87(4)
  • Employment and Labour Relations Court ActSection 12, Section 12(3)(vii)
  • National Police Service Commission (Disciplinary Regulations), 2015Sections 10(h), 10(4)(f)
  • Employment Act, 2007Sections 3(2), 3(2)(b), 49, 90
  • Limitation of Actions ActSection 4(1)
  • Laws of Kenya (Section 90 as cited by Respondents)Section 90

Cases cited (16)

  • Anarita Karimi Njeru v Republic
    Miscellaneous Criminal Application No. 4 of 1979 [1979] eKLR
  • Okiya Omtatah Okoiti Vs President of Kenya & 9 others
    [2016] eKLR
  • Kenya Petroleum Workers Union Vs Kenya Pipeline Company Limited
    [2014] eKLR
  • Republic Vs National Police Service Commission & 3 others Ex-Parte: David Kinuthia Kariuki
    [2017] eKLR
  • Lt Col. Peter Ngari Kagume & others Vs The Attorney General
    H.C. Petition No. 128 of 2006
  • Attorney General & another Vs Andrew Maina Githinji & another
    [2016] eKLR
  • Civil Appeal No. 21/2015 (Nyeri)
  • Njuguna Githiru vs Attorney General
    (2016) eKLR
  • Joan Akinyi Kabasellah and 2 Others vs Attorney General
    Petition No 41 of 2014
  • Dominic Arony Amolo vs Attorney General
    Nairobi High Court Misc. Civil Case No 1184 of 2003 (OS) [2010] eKLR
  • Otieno Mak'Onyango vs Attorney General and Another
    Nairobi HCCC NO 845 of 2003 (unreported)
  • James Kanyiita vs Attorney General and Another
    Nairobi Petition No. 180 of 2011
  • Gerald Gichohi and 9 Others vs Attorney General
    Petition No. 487 of 2012
  • Kiluwa Limited & another Vs Commissioner of Lands & 3 Others
    [2015] eKLR
  • Samson Ole Kisirkoi v Maasai Mara University & 3 others
    [2018] eKLR
  • Stanley Munga Githunguri v Republic
    [1985] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, with jurisdiction under Articles 23 and 165 to uphold and enforce the Bill of Rights

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Eric Sangura Nasoko v National Police Service Commission & 4 others [2018] KEELRC 2527 (KLR)", Case Analysis (2018). Petition No. 21 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2527/eng@2018-07-11

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