Eric Sangura Nasoko v National Police Service Commission & 4 others [2018] KEELRC 2527 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petition is time barred under Section 90 of the Employment Act
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
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.
Whether the 1st Respondent breached Sections 62 and 63 of ACECA in dismissing the Petitioner
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
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.
Whether the Respondents violated the Petitioner's constitutional rights
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
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.
Legal principles established
#- 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
#- 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.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.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.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.Costs to be borne by the Respondents
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Thuita Mwangi v Attorney General & 2 others [2021] KEELRC 1467 (KLR)[2021] KEELRC 1467 (KLR)10 Jun 2021
- Timothy Nchoe Sironka v Judical Service Commission [2020] KEELRC 503 (KLR)[2020] KEELRC 503 (KLR)17 Sept 2020applied
- Daniel Kago Gachanja v Inspector General & 2 others [2020] KEELRC 1631 (KLR)[2020] KEELRC 1631 (KLR)7 Feb 2020distinguished
Cite this brief
#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.