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ELRCDismissedPetition dated 15th August 2018· [2019] KEELRC 1632 (KLR)

Tony Kiprotich Koskei v National Police Service Commissionn & another [2019] KEELRC 1632 (KLR)

Employment and Labour Relations Court
24 May 2019
NMNzioki wa Makau
2,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a police officer's challenge to his dismissal because he filed it more than three years too late.

What this practically means

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Executive summary

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The Petitioner, a police officer enlisted on 29th August 1998, petitioned the Employment and Labour Relations Court at Nyeri challenging his dismissal for alleged desertion of duties on 26th January 2011. He claimed he had been transferred from Baricho to Ukasi and then Kaningo Police Station, and that upon returning from leave he found his salary unprocessed; while following up in Nyeri he learned he had been dismissed as a deserter. He sought declarations under Articles 35(2) and 47 of the Constitution, quashing of Baricho Law Courts proceedings, payment of withheld salaries with interest, reinstatement, and compensation, asserting that the Respondent's failure to determine his appeal of 30th January 2013 was a continuing injury exempting the claim from limitation under Section 90 of the Employment Act and Section 9 of the Fair Administrative Action Act. The Respondents opposed, asserting the dismissal followed orderly room proceedings in which the Petitioner pleaded guilty; that his appeal was disallowed; that the Respondent had no mandate to reopen disciplinary matters concluded before its establishment; and that the claim was time barred. The court held that the acknowledgment of the appeal letter did not reopen the concluded matter, that the Fair Administrative Action Act postdated the events, and that the petition was in substance an employment claim governed by Section 90 of the Employment Act, filed way out of time. The petition was dismissed with no order as to costs, dated and delivered at Nyeri on 24th May 2019 by Nzioki wa Makau J.

Key legal issues

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01

Whether the petition was time barred

Holding

Yes; the petition was an employment claim subject to Section 90 of the Employment Act's three-year limitation period, and the pending appeal did not constitute a continuing injury

Reasoning

The court held the acknowledgment of the appeal letter did not reopen the previously determined disciplinary matter. The Fair Administrative Action Act came into force in 2015, after the dismissal and appeal. The cause of action arose in employment and does not change by naming the pleading a petition; the claim was therefore filed way out of time.

p. 3
02

Whether the dismissal was procedurally fair

Holding

No constitutional violation was established; the Respondents asserted the petitioner was taken through orderly room proceedings and pleaded guilty, and the petitioner's evidence did not establish a violation

Reasoning

The court accepted that the claim was for redress of employment rights under the Employment Act rather than a constitutional violation. The Respondents' evidence was that the petitioner was charged, taken through orderly room proceedings, pleaded guilty and was dismissed; no violation of constitutional rights was found.

p. 3

Legal principles established

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  • An acknowledgment of an appeal letter with a promise to revert does not reopen a concluded disciplinary matter
  • A constitutional petition seeking redress for employment rights remains subject to limitation under the Employment Act

Court orders

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  1. 1.The Petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35(2); Article 47(1) and (2); Article 41; Article 24; Article 20(4)
  • Employment Act, 2007Section 90; Section 41
  • Fair Administrative Action Act, 2015Section 9

Cases cited (8)

  • Stephen Muange Mutua v Kenya Revenue Authority
    [2017]
  • Republic v National Police Service Commission ex Parte Daniel Chacha Chacha
    [2016] eKLR
  • Republic v Commission on Administrative Justice ex Parte National Social Security Fund Board of Trustees
    [2015] eKLR
  • Teachers Service Commission v Joseph Wambugu Nderitu
    [2016] eKLR
  • Godfrey Paul Okutoyi v Habil Olaka – Executive Director (Secretary) of the Kenya Bankers Association & Another
    [2018] eKLR
  • John Miriti Mbarire v Attorney General
    [2014] eKLR
  • James Kanyiita Nderitu v Attorney General & Another
    [2019] eKLR
  • Johnstone Ogechi v The National Police Service
    [2017] eKLR
Jurisdiction invoked
Article 35(2), Article 47(1) and (2) of the Constitution and the Fair Administrative Action Act invoked in the petition; claim found to fall under the Employment Act, 2007

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, "Tony Kiprotich Koskei v National Police Service Commissionn & another [2019] KEELRC 1632 (KLR)", Case Analysis (2019). Petition dated 15th August 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1632/eng@2019-05-24

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