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ELRCStruck OutPetition (number not stated in judgment)· [2020] KEELRC 1698 (KLR)

Simon Titus Yandi v National Police Service Commission & Attorney General [2020] KEELRC 1698 (KLR)

Employment and Labour Relations Court
7 February 2020
RSRadido Stephen
1,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court struck out a former police officer's 2018 rights petition because he waited nearly ten years after his 2009 dismissal to sue.

What this practically means

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Executive summary

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The Petitioner, a former Police Constable enlisted in 1988, was dismissed from the Kenya Police Service by letter dated 25 February 2009 on grounds of a bad disciplinary record, following Orderly Room Proceedings said to have been held in his absence at Kerugoya/Kianyaga Police Station. He issued a statutory notice under the Government Proceedings Act on 17 March 2009 but only filed the present Petition on 30 October 2018, alleging violation of his rights to fair administrative action, fair hearing and liberty following a 14-day detention. The Attorney General raised a preliminary objection contending the suit was time-barred under section 90 of the Employment Act, the Limitation of Actions Act and the Public Authorities Limitation Act, and was an abuse of process. The Petitioner relied on Beatrice Wanjiru to argue that serious questions of fundamental rights should not be resolved as a preliminary issue, and on Mukisa Biscuits to challenge the competence of the objection. The Court, citing the Supreme Court's decision in Benard Murage, held that where a statutory remedy exists it should be pursued first; the Police Service had elaborate disciplinary regulations which were not challenged as unconstitutional, so the Petition raised no real constitutional questions and was a device to circumvent limitation. Section 90 of the Employment Act did not apply by dint of section 3(2)(b); limitation fell under the Limitation of Actions Act, whose six-year period had long lapsed. Holding that the Petitioner had gone to sleep on his rights, the Court struck out the Petition with no order on costs.

Key legal issues

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01

Whether dismissal of a police officer is justiciable only as a constitutional petition

Holding

The dismissal dispute lay squarely within statutory law governing police discipline; the Petition raised no real constitutional questions.

Reasoning

The Police Service has elaborate regulations governing discipline and removal from service, which were not challenged as unconstitutional. The Petitioner did not challenge the statutory powers under which the Commissioner of Police dismissed him, so the constitutional route was a device to circumvent limitation objections.

p. 3
02

Applicability of section 90 of the Employment Act, 2007

Holding

Section 90 of the Employment Act does not apply to the cause of action; limitation falls to be determined under the Limitation of Actions Act.

Reasoning

By dint of section 3(2)(b) of the Employment Act, 2007, that statute (including section 90 on limitation of employment claims) does not apply to a member of the Police Service. The court therefore assessed limitation under section 4(1) of the Limitation of Actions Act, which provides six years for contractual disputes.

p. 3
03

Whether the Petition was time-barred

Holding

Yes. The cause of action accrued on 25 February 2009 but the Petition was filed on 30 October 2018, well outside the limitation period.

Reasoning

The Petitioner issued a statutory notice under the Government Proceedings Act on 17 March 2009 but never followed it up with a suit, nor did he exhaust the dispute resolution mechanisms indicated in the dismissal letter. The court characterized him as a litigant who went to sleep, and held the claim statute-barred and an abuse of process.

p. 3

Legal principles established

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  • Where there exists an alternative statutory remedy, it should be pursued first rather than elevating every violation of law to a constitutional issue
  • A preliminary objection on limitation goes to jurisdiction and should be raised at the earliest opportunity even in constitutional litigation
  • Even where serious questions of violation of fundamental rights are raised, a party should move the Court at the earliest opportunity

Court orders

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  1. 1.The Petition is struck out with no order on costs

Authorities

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Legislation

  • Police Actregulation 3 sub-regulation 47
  • Employment Act, 2007section 90
  • Employment Act, 2007section 3(2)(b)
  • Limitation of Actions ActCap 21; section 4(1)
  • Public Authorities Limitation Act(not specified)
  • Government Proceedings Actstatutory notice provision (not specified)

Cases cited (4)

  • Mary Osundwa v Nzoia Sugar Co Ltd
    (2002) eKLR
  • Beatrice Wanjiru & 2 Ors v Attorney General
    (2017) eKLR
  • Benard Murage v Fine Serve Africa Ltd & 3 Ors
    (2015) eKLR
  • Mukisa Biscuits Manufacturing Ltd v West End Distributors Ltd
    (1969) EA 697
Jurisdiction invoked
Original jurisdiction over alleged violation of constitutional rights (fair administrative action, fair hearing and liberty) by a former member of the Kenya Police Service

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simon Titus Yandi v National Police Service Commission & Attorney General [2020] KEELRC 1698 (KLR)", Case Analysis (2020). Petition (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1698/eng@2020-02-07

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