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ELRCAllowedPetition filed 13th October 2017 (ELRC)· [2020] KEELRC 1340 (KLR)

Shadrack Kahindi Shida v National Police Service Commision &2 Others [2020] KEELRC 1340 (KLR)

Employment and Labour Relations Court
26 March 2020
JRJames Rika
1,019 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 an employer cannot stop an employee's salary over unproven allegations without first investigating and giving the employee a hearing.

What this practically means

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Executive summary

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The Petitioner, a Police Constable in the Administration Police then serving in Lamu West Sub-County, petitioned the Employment and Labour Relations Court at Mombasa challenging the stoppage of his salary effected through a letter dated 10th February 2016 from the Limuru Sub-County Commander, Michael Mathangani, alleging that he had deserted service for 15 days. The Petitioner explained his absence by his child's illness and his own subsequent sickness, supported by medical evidence and notification to his commander. He was formally transferred to Githunguri Sub-County and later Lamu West, and continued in active service. The Respondents opposed the Petition through Grounds of Opposition asserting non-exhaustion of internal dispute resolution mechanisms, and through an affidavit of Superintendent Benard Mburu alleging the Petitioner was a habitual absentee with arrogance against authority, and that he disappeared from Lamu West on 30th June 2016. The parties agreed on 28th October 2019 to have the Petition determined on the record. The Court found that the Petitioner had not deserted; he was assigned and discharged duty long after the alleged desertion, no disciplinary action was ever instituted, and even the commander who wrote the desertion letter later commended him and deployed him formally. The Court held that stopping the salary of a security officer serving a high-risk county, based on apocryphal accusations and untested allegations, without investigation or hearing, violated Article 41(1) of the Constitution and Section 17 of the Employment Act. The Petition was allowed: the stoppage letter was quashed in its entirety, salary, allowances and benefits were restored in full from the date of stoppage, the stoppage was declared unconstitutional, and no order was made on costs. Judgment was delivered at Mombasa on 26th March 2020 by James Rika, Judge.

Key legal issues

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01

Alleged desertion of duty

Holding

Not proved; the Petitioner was sick, had notified his commander, and continued to serve and was formally transferred after the alleged desertion

Reasoning

The letter alleging desertion dated 10th February 2016 was the foundation of the salary stoppage. The Court found medical evidence showing the Petitioner was attending to a sick child and later fell ill himself, and that he notified his Sub-County Commander. He was formally transferred to Githunguri and then Lamu West and continued in active service, confirmed by intercessory letters from Commander Marete and even a commendation from the same commander who wrote the desertion letter.

p. 2
02

Constitutionality of stopping salary without hearing

Holding

The stoppage was unconstitutional and violated fair labour practices

Reasoning

No disciplinary action was ever instituted for any offence. The Respondents relied on generalized and untested allegations of habitual absenteeism and arrogance. The Court held that stopping the salary of a security officer serving a high-risk county based on apocryphal accusations, without investigation or hearing, violated Article 41(1) of the Constitution and Section 17 of the Employment Act.

p. 3

Legal principles established

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  • An employer must pay the entire amount of salary earned by the employee; salary cannot be stopped at the whim of a commander based on untested allegations without investigation or hearing.
  • Drastic disciplinary measures such as stoppage of salary require investigation and a hearing before they are imposed.

Court orders

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  1. 1.The Petition is allowed
  2. 2.The letter dated 10th February 2016 stopping Petitioner's salary is quashed in its entirety
  3. 3.The Petitioner's salary, allowances and all benefits stopped as a result of the said letter shall be restored in full from the date of stoppage
  4. 4.Declaration that the stoppage of the Petitioner's salary is unconstitutional
  5. 5.No order on the costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1)
  • Employment ActSection 17
Jurisdiction invoked
Article 41(1) of the Constitution; Employment Act (original constitutional and employment jurisdiction of the ELRC)

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, "Shadrack Kahindi Shida v National Police Service Commision &2 Others [2020] KEELRC 1340 (KLR)", Case Analysis (2020). Petition filed 13th October 2017 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1340/eng@2020-03-26

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