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ELRCDismissedJudicial Review No 1 of 2019 (Formerly HCC JR 8/2019)· [2020] KEELRC 1923 (KLR)

Dickson Kiplagat Kasebe v National Police Service Commission [2020] KEELRC 1923 (KLR)

Employment and Labour Relations Court of Kenya at Eldoret
30 October 2020
ANAbuodha Jorum Nelson
2,659 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a police officer's bid to overturn a transfer by judicial review, confirming deployment decisions are for the police command, not individual officers.

What this practically means

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Executive summary

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The applicant, a police officer, sought judicial review orders of mandamus to quash an alleged verbal transfer by Sergeant Maingi from Nairobi City Water and Sewerage Company to the Meteorological Department, mandamus compelling payment of salary arrears from April 2019, and prohibition against disciplinary action or termination without legal compliance. He contended the transfer was oral, arbitrary and contravened the National Police Service Commission (Transfer and Deployment) Regulations 2015, and that he was denied access to his new station. The respondent, through a replying affidavit, denied a verbal transfer, asserting the applicant was redeployed following complaints of misconduct, was transported to the new station, then deserted duty from 1st April 2019, prompting trace signals, stopping of his salary, presumption of desertion under Section 94 of the National Police Service Act, criminal charges for desertion before the Chief Magistrate's Court at Mavoko and publication as a wanted person. The respondent also objected to jurisdiction, arguing the dispute was an ordinary employer-employee matter testing the merits of a deployment decision, and that no quashable decision existed under Order 53 rule 7. The court held that judicial review remedies apply in employment only where the employment is underpinned by the Constitution or statute and the impugned decision contravenes them; ordinary employment disputes belong to the Employment Act regime. Deployment of police officers is a matter of discretion of the Inspector General and/or the Commission. The court found documents on record showed formal redeployment, not a verbal transfer, and dismissed the application as unmerited and in bad faith, with costs to the respondent.

Key legal issues

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01

Availability of judicial review remedies in employment disputes

Holding

Judicial review is inappropriate for ordinary employment disputes; the applicant's case fell in that category

Reasoning

The court held that judicial review remedies are public law remedies applying in limited circumstances. In employment, they apply only where a public officer's terms are underpinned by the Constitution or statute and the decision contravenes them. Ordinary contracts are covered by the Employment Act and human resource manuals, making judicial review inappropriate here.

p. 4
02

Whether the applicant was verbally transferred

Holding

Documents on record showed the applicant was formally redeployed, contradicting his claim of a verbal transfer

Reasoning

The respondent exhibited a redeployment order dated 28th March 2019 and its letter of 10th May 2019 refuted the claim of verbal transfer, advising the applicant to report to his new station. The applicant did not exhibit any response showing he reported and was denied access, instead filing the application two months later.

p. 4
03

Existence of a decision capable of being quashed

Holding

The applicant, relying on an alleged verbal decision, did not avail evidence demonstrating any decision capable of being quashed

Reasoning

Counsel for the respondent argued under Order 53 rule 7 that the applicant only claimed a verbal decision delivered by Sergeant Maingi without evidence it existed. The court's dismissal of the application as unmerited effectively endorsed the absence of a quashable decision.

p. 3

Legal principles established

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  • Judicial review remedies in employment matters apply only where the employment of a public officer is underpinned by the Constitution or statute, and the applicant must show the impugned decision contravenes that Constitution or statute
  • Deployment of officers in the police service is a matter of discretion of the Inspector General and/or the National Police Service Commission, not a choice for the officer

Court orders

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  1. 1.The Notice of Motion dated 18th July 2019 is dismissed with costs

Authorities

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Legislation

  • National Police Service ActSection 94 (and 94(1))
  • National Police Service Commission (Transfer and Deployment) Regulations 2015Regulation 7(1) and (2)
  • Civil Procedure RulesOrder 53 rule 7
  • Employment Act
  • Constitution of Kenya
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules; employment dispute within the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Dickson Kiplagat Kasebe v National Police Service Commission [2020] KEELRC 1923 (KLR)", Case Analysis (2020). Judicial Review No 1 of 2019 (Formerly HCC JR 8/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1923/eng@2020-10-30

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