Dickson Njiru Kivara v Attorney General [2019] KEELRC 2527 (KLR)
The bottom line
#A Kenyan court converted a police officer's dismissal to a discharge with benefits and awarded him Kshs.1 million because the police failed to prove the disciplinary proceedings happened.
What this practically means
#Executive summary
#Key legal issues
#Whether there was reasonable cause to commence disciplinary proceedings (drunkenness on duty)
The evidence did not prove the claimant was drunk; no medical test was done and reliance was placed only on facial appearance and history.
RW1 conceded no medical test ascertained drunkenness; the respondent relied on redness of eyes and the claimant's history. While a medical test is not mandatory (consent would be needed), the record contained no proof of the offence. An inspection initially found him fit to perform, and he performed his duties.
Whether orderly room proceedings took place and whether the court may interfere in disciplinary proceedings
The respondent failed to prove that orderly room proceedings took place; the court could intervene despite the caution generally applied to disciplinary processes.
The claimant denied attending proceedings; RW1 insisted they occurred but adduced no record. A defaulter sheet and evidence note are not conclusive proof. The cited authorities cautioning judicial interference were concurred with but distinguished because here the employer failed to evidence the proceedings, and non-intervention would perpetuate injustice.
Whether a court determination would influence the pending Public Service Commission appeal
The issue could not be determined because it was raised only in submissions without pleading or evidence.
The claim of a pending PSC appeal was not pleaded in the Statement of Defence and no evidence was adduced; raising it in submissions amounts to introducing new facts without the claimant having an opportunity to respond. In any event, the appeal response was long overdue given the claim was filed three years after dismissal.
Applicable legal regime for a police officer's termination
The Employment Act 2007 (and the repealed 1976 Act) does not apply to members of the disciplined forces; the Police Act applies.
Section 3(2) of the Employment Act 2007 and section 1(2) of the repealed Employment Act (1976) expressly exclude the Kenya Police. The claimant, as a police officer, was subject to the disciplinary procedure under the Police Act, Cap 84, and the claimed statutory reliefs were unavailable.
Legal principles established
#- The burden lies on the employer to prove that orderly room/disciplinary proceedings were conducted in the manner provided by the regulations.
- Where the employer fails to adduce evidence of the disciplinary proceedings, the court may intervene in the administrative disciplinary process.
Court orders
#- 1.The dismissal be reduced to a normal discharge with full benefits.
- 2.Payment of Kshs.1 million as damages to the claimant.
- 3.The respondent shall pay the claimant's costs of this suit.
- Jurisdiction invoked
- Original employment jurisdiction of the Industrial Court over a claim of unlawful termination of police service
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Njiru Kivara v Attorney General [2019] KEELRC 2527 (KLR)", Case Analysis (2019). Claim filed 5th May 2009 (Plaint dated 28th April 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2527/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.