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ELRCAllowedPetition No. 183 of 2019· [2020] KEELRC 485 (KLR)

Ndegwa v National Police Service Commission & another [2020] KEELRC 485 (KLR)

Employment and Labour Relations Court of Kenya
16 September 2020
HWHellen S. Wasilwa
3,014 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 ruled a police officer's dismissal unlawful because his employer never proved he received his transfer orders or was given a fair hearing.

What this practically means

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Executive summary

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The Petitioner, a Police Officer enlisted in the Administration Police Service in 2008, challenged his suspension and dismissal following an alleged failure to report to a new posting at Loiyangalani Sub County, Marsabit County. He sought a declaration of rights violation, certiorari to quash the dismissal, reinstatement, compensation and costs, contending that the transfer was never communicated to him, that the Orderly Room Proceedings were held in his absence, and that his suspension and dismissal violated Articles 41, 47 and 50 of the Constitution and the Fair Administrative Actions Act. The 1st Respondent maintained that valid grounds existed - absence without leave and wilful disobedience of a lawful order - that due process was followed under Section 88 of the National Police Service Act, and that the Petition was premature under the doctrine of exhaustion since the Petitioner's internal appeal was pending. The court found the Respondents failed to prove that the Petitioner was ever served with the transfer signal, that no minutes or evidence of a disciplinary hearing were produced, and that the failure to hear the Petitioner's appeal for lack of quorum was a dereliction of duty. Applying Section 45(2) of the Employment Act, the court held the dismissal unfair and unjustified, breaching Articles 41 and 47. The Petition succeeded: the court declared the Petitioner's rights violated, quashed the dismissal by way of certiorari, ordered reinstatement without loss of salary, benefits and promotion, and awarded one million shillings in compensation. Notably, the final order directs the Petitioner to pay the costs of the Petition, an apparent internal inconsistency.

Key legal issues

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01

Service of the transfer signal

Holding

The Respondents failed to prove that the Petitioner was served with or had knowledge of the transfer signal; therefore the Petitioner had no knowledge of his transfer or deployment.

Reasoning

The Respondents alleged the Petitioner had knowledge of the redeployment signal but did not demonstrate how it was communicated to him. The court held the prudent course was to show remittance through his supervisor; absent such evidence, knowledge could not be imputed, and condemning him on grounds he knew nothing of breached Article 41 fair labour practices.

p. 4
02

Fair hearing before dismissal

Holding

The Petitioner was not given a fair hearing; his rights under Article 47 of the Constitution were breached.

Reasoning

The Respondents claimed a disciplinary process took place but produced no minutes or proof of the hearing. The Orderly Room Proceedings were allegedly held in the Petitioner's absence. Without proof of a hearing, the court found the Petitioner was condemned unheard, breaching Articles 41 and 47 and principles of natural justice.

p. 4
03

Unfair termination under Section 45(2) of the Employment Act

Holding

The dismissal was unfair and unjustified as the Respondents failed to prove a valid reason and fair procedure.

Reasoning

Applying Section 45(2) of the Employment Act, 2007, an employer must prove that the reason for termination is valid, fair and that the termination followed fair procedure. Having found no proof of service of the transfer signal and no demonstrable hearing, the court concluded the dismissal without valid reason or due process breached Articles 41 and 47.

p. 4
04

Doctrine of exhaustion and pending internal appeal

Holding

The court did not accept the exhaustion objection; the pendency of the Petitioner's unresolved internal appeal did not defeat the Petition.

Reasoning

The 1st Respondent argued that the Petition was premature since the Petitioner's internal appeal remained pending due to lack of quorum. The court described that explanation as 'laughable and a clear dereliction of duty' and proceeded to determine the Petition on its merits, finding the Respondents' delay in constituting the appeal could not justify the dismissal process failures.

p. 4

Legal principles established

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  • The party alleging that a party had knowledge of a communication (such as a transfer signal) bears the burden of proving service of that communication.
  • An employer must prove both a valid reason and a fair procedure for termination; failing which the termination is unfair.
  • Where a party claims a fair disciplinary process was conducted, failure to produce minutes or proof of the hearing means no fair hearing is demonstrated.

Court orders

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  1. 1.A Declaration that the Petitioner's Fundamental Rights and Freedoms have been violated
  2. 2.An Order of Certiorari to issue quashing the entire proceedings and decision of the Respondent dismissing the Petitioner from the Administration Police Service
  3. 3.An Order for reinstatement of the Petitioner to the service as a Police Officer without loss of salary, benefits and promotion from the time of dismissal to date
  4. 4.Compensation of 1 (one) million Kenya shillings for violation of the Petitioner's rights and freedoms
  5. 5.The Petitioner to pay costs of this Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 50
  • Fair Administrative Actions ActSections 9(2) and 9(4); Article 47 provisions
  • Employment Act, 2007Section 45(2)
  • National Police Service Act, 2011Section 88(1)(2) and Eighth Schedule; Section 94
  • National Police Service (Transfer and Deployment) RegulationsNot specified
  • National Police Service (Discipline) RegulationsNot specified
  • National Police Service (Service Standing Orders)Chapter 72 paragraph 7; Chapter 5 Paragraph 7; Chapter 30
  • Official Secrets ActNot specified

Cases cited (8)

  • Wilfred Mbithi Jason Vs National Police Service Commission
    (2016) eKLR
  • Republic Vs National Land Commission and 2 Others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West)
    (2018) eKLR
  • Msagha Vs Chief Justice Nairobi HCMCA No. 1062 of 2004
    HCMCA No. 1062 of 2004
  • Geoffrey Muthinja & 2 Others Vs Samuel Munga Henry & 1756 Others
    (2015) eKLR
  • Republic Vs Nairobi City County Government Ex-parte Ndiara Enterprises Limited
    (2017) eKLR
  • Railroad Commission Vs Duluth Street Railway
    273 U.S 625, 628 (192
  • Alice Mweru Ngai Vs Kenya Power & Lighting Company Limited
    (2015) eKLR
  • Francis Munyoki Kilonzo & Another Vs Vincent Mutua Mutiso
    (2013) eKLR
Jurisdiction invoked
Articles 41, 47 and 50 of the Constitution of Kenya, 2010 (enforcement of fundamental rights and freedoms; fair labour practices and fair administrative action)

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, "Ndegwa v National Police Service Commission & another [2020] KEELRC 485 (KLR)", Case Analysis (2020). Petition No. 183 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/485/eng@2020-09-16

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