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ELRCAllowedPetition (Nyeri), 2019· [2019] KEELRC 419 (KLR)

Stephen Mathenge Kariithi v National Police Service & 2 others [2019] KEELRC 419 (KLR)

Employment and Labour Relations Court
15 October 2019
NMNzioki wa Makau
1,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenyan employers cannot punish an employee for an offence a criminal court has already acquitted them of.

What this practically means

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Executive summary

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The Petitioner, a Police Constable, was charged with desertion contrary to Section 94(1) of the National Police Service Act in Mavoko Criminal Case No. 706 of 2014 and acquitted on 28 November 2014 by Hon. E. K. Too. He was reinstated on 11 August 2015. The Respondents nonetheless issued a show cause letter dated 15 July 2015 rehashing the same desertion allegations and threatening removal from the force. The Petitioner argued this violated Articles 27, 28, 41, 47 and 50 of the Constitution, amounting to double jeopardy and unfair labour practice, and relied on Joshua Muindi Maingi v National Police Service, where Ongaya J. declared the provision permitting retrial of acquitted officers unconstitutional, later reinforced by the Statute Law (Miscellaneous Amendments) Act No. 12 of 2015. The Respondents, citing Clement Karuri and Geoffrey Kiragu Njogu, maintained that disciplinary proceedings are distinct from criminal proceedings and involve different standards of proof. The court accepted that managerial prerogative is interfered with sparingly, per Geoffrey Mworia, but held that the employer had let the criminal trial run its course, without issuing a show cause letter, and only after the acquittal resurrected the same charges - a classic double jeopardy offending Article 50. The court declared the show cause letter unconstitutional, barred any disciplinary process against the Petitioner over the alleged desertion, and awarded costs to the Petitioner.

Key legal issues

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01

Whether disciplinary proceedings after criminal acquittal constitute double jeopardy

Holding

Where the employer allowed the criminal case to run its course and only thereafter issued a show cause letter on the same offence, the disciplinary process violates Article 50 and is classic double jeopardy.

Reasoning

The court distinguished tandem proceedings, which are permitted, from sequential proceedings initiated only after an acquittal. Section 88(4) of the National Police Service Act, as held by Ongaya J. in Joshua Muindi Maingi and reflected in the Statute Law (Miscellaneous Amendments) Act No. 12 of 2015, does not permit charging officers for offences for which courts have found them not guilty. The employer subrogated its disciplinary process awaiting a favourable criminal outcome, which cannot be countenanced.

p. 2
02

Employer's managerial prerogative versus constitutional rights

Holding

Managerial prerogative does not supersede a criminal court's decision; interference is warranted where the process contravenes the Constitution.

Reasoning

Relying on Geoffrey Mworia v Water Resources Management Authority, the court accepted that courts interfere sparingly with human resource functions, but here the employer proceeded in a manner inconsistent with Article 50. The criminal court, applying the beyond-reasonable-doubt standard, found no evidence of desertion, and the employer, which participated in that trial, cannot reopen the same question through internal discipline.

p. 2

Legal principles established

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  • An employer may not defer its disciplinary process, await the outcome of a criminal trial, and then charge the employee afresh for the same offence after acquittal.
  • Courts interfere sparingly with an employer's human resource functions, but only where constitutional or statutory provisions are contravened or the process is manifestly unfair.

Court orders

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  1. 1.Declared the Respondents' letter (notice to show cause dated 15th July 2015) unconstitutional
  2. 2.Ordered that the Petitioner shall not be subjected to any disciplinary process in regard to the alleged desertion
  3. 3.Awarded costs of the petition to the Petitioner

Authorities

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Legislation

  • National Police Service ActSection 94(1)
  • National Police Service ActSection 88(4) (referred to as 84(4))
  • Statute Law (Miscellaneous Amendment) ActAct No. 12 of 2015
  • Constitution of KenyaArticles 27, 28, 41, 47, 50

Cases cited (4)

  • Joshua Muindi Maingi v National Police Service & 2 others
    [2015] eKLR
  • Clement Karuri v Kenya Ports Authority
    [2018] eKLR
  • Geoffrey Kiragu Njogu v TSC & 2 Others
    [2015] eKLR
  • Geoffrey Mworia v Water Resources Management Authority & 2 Others
    [2015] eKLR
Jurisdiction invoked
Constitution of Kenya, Articles 47, 50 and employment and labour relations jurisdiction (unfair labour practice under Article 41)

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, "Stephen Mathenge Kariithi v National Police Service & 2 others [2019] KEELRC 419 (KLR)", Case Analysis (2019). Petition (Nyeri), 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/419/eng@2019-10-15

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