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ELRCPartially AllowedClaim filed 5th May 2009 (Plaint dated 28th April 2009)· [2019] KEELRC 2527 (KLR)

Dickson Njiru Kivara v Attorney General [2019] KEELRC 2527 (KLR)

Industrial Court (Employment and Labour Relations Court)
18 January 2019
3,436 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a police officer attached to the presidential escort band, was summarily dismissed in May 2006 on a charge of drunkenness on duty at a KICC function. He sued in the Industrial Court seeking general damages, a declaration of entitlement to terminal benefits, interest and costs. The Respondent maintained the dismissal followed the force regulations after valid orderly room proceedings and that the claim was premature given a pending appeal before the Public Service Commission. The court framed five issues. On the evidence, RW1 conceded no medical test was conducted, and the court found the offence of drunkenness unproven. Although RW1 insisted orderly room proceedings took place on 11th May 2006 with four witnesses, no record of the proceedings was produced; the defaulter sheet and evidence note were held not to be conclusive proof. The court concurred with the caution against judicial interference in disciplinary processes in the authorities relied on by the Respondent but distinguished them, holding that non-intervention would perpetuate injustice where the employer failed to evidence the proceedings. The PSC appeal argument failed as it was raised only in submissions without pleading or evidence. The court held the Employment Act 2007 and the repealed 1976 Act do not apply to police officers, so the pleaded statutory reliefs were unavailable. Taking into account 17 years of service and over 10 years out of service, the court converted the dismissal to a normal discharge with full benefits, awarded Kshs.1 million damages, and awarded the Claimant costs.

Key legal issues

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01

Whether there was reasonable cause to commence disciplinary proceedings (drunkenness on duty)

Holding

The evidence did not prove the claimant was drunk; no medical test was done and reliance was placed only on facial appearance and history.

Reasoning

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.

p. 5
02

Whether orderly room proceedings took place and whether the court may interfere in disciplinary proceedings

Holding

The respondent failed to prove that orderly room proceedings took place; the court could intervene despite the caution generally applied to disciplinary processes.

Reasoning

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.

p. 6
03

Whether a court determination would influence the pending Public Service Commission appeal

Holding

The issue could not be determined because it was raised only in submissions without pleading or evidence.

Reasoning

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.

p. 6
04

Applicable legal regime for a police officer's termination

Holding

The Employment Act 2007 (and the repealed 1976 Act) does not apply to members of the disciplined forces; the Police Act applies.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The dismissal be reduced to a normal discharge with full benefits.
  2. 2.Payment of Kshs.1 million as damages to the claimant.
  3. 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

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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, "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.