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ELRCDismissedPetition filed 22nd October 2018 (Bungoma)· [2020] KEELRC 1941 (KLR)

Nyangau v National Police Service Commission & 2 others (Constitutional Petition 5 of 2018) [2020] KEELRC 1941 (KLR)

Employment and Labour Relations Court
30 January 2020
MNMATHEWS N. NDUMA
2,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan police officer who refused a lawful transfer lost his case, proving that ignoring a transfer order can justify stopped pay.

What this practically means

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Executive summary

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A police constable stationed at Malakisi Police Station in Bungoma County was transferred to Mberere Police Post in Nandi County by a signal dated 16th April 2016. He declined to report, citing land disputes over plot LR 1408/32 at Malakisi involving a private businessman and the County Government of Bungoma, appealed to the National Police Service Commission, and applied for early retirement. He was removed from the duty roster, his salary was stopped from September 2017, and he was charged with desertion in Sirisia SRM's Criminal Case No. 550 of 2018, a charge later withdrawn under Section 87(a) of the Criminal Procedure Code. He petitioned for declarations that the stoppage of salary for 13 months and failure to deploy violated Articles 35, 41, 47, 50 and 159 of the Constitution and the Employment Act, plus a mandatory injunction to compel deployment and payment of Kshs. 583,440. The respondents maintained the transfer was lawful, originating from the Deputy Inspector General's office under Section 116 of the National Police Service Act and affecting several officers. The court framed two issues: whether the transfer was lawful and procedural, and whether the petitioner was entitled to the reliefs. It held the transfer was lawful and procedural; malice was not proved on a balance of probabilities; private land disputes do not justify defying a lawful transfer order; and the petitioner had deserted service, so the salary stoppage was lawful. Applying the Mumo Matemo/Anarita Karimi Njeru precision-of-pleading principle, the court found no violation of Articles 41, 47, 50, 73 and 236 and dismissed the petition in its entirety with no order as to costs on 30th January 2020.

Key legal issues

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01

Whether the transfer of the petitioner was lawful and procedural

Holding

The transfer was lawful and procedural, originating from the office of the Deputy Inspector General of Police and affecting several other officers; malice was not proved on a balance of probabilities.

Reasoning

The court found the transfer emanated from the Deputy Inspector General's office at Police Headquarters, not the petitioner's immediate supervisors, and involved several other officers who complied. The petitioner failed to prove malice, ill will or vendetta on a balance of probabilities, and private land disputes do not justify defying a lawful transfer order.

p. 5
02

Whether the petitioner's constitutional rights under Articles 41, 47, 50, 73 and 236 were violated

Holding

No violation disclosed; the petitioner's conduct amounted to insubordination and desertion, and the pleaded facts did not establish any constitutional infringement.

Reasoning

Relying on the precision-of-pleading principle, the court held the pleaded facts did not disclose violations. The petitioner declined to report despite marching orders, which was insubordination and desertion; respondents rebutted the general allegations of malice and vendetta against his superiors.

p. 5
03

Whether the petitioner was entitled to salary and allowances

Holding

Not entitled; salary and allowances had been lawfully stopped because the petitioner deserted service by refusing to report to his new duty station.

Reasoning

As at filing suit the petitioner had neither reported to the new station nor resumed duty at Malakisi. The court found he had deserted service without lawful authority, so the stoppage of salary was lawful; desertion charges had been withdrawn only in favour of internal administrative proceedings stayed by court order.

p. 5

Legal principles established

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  • A party alleging constitutional violation must plead the complaint, the provisions infringed and the manner of infringement with reasonable precision.
  • Private matters, including pending land disputes, do not constitute a valid reason to decline a lawful order of transfer.

Court orders

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  1. 1.The petition is dismissed in its entirety.
  2. 2.No order as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 23, 35, 41, 47, 50, 73, 159, 236
  • Employment Act, 2007Section 17 as read with Section 35(1)(c)
  • National Police Service Act, 2011Sections 94(1) read with Section 3; Section 116
  • Transfer and Deployment Regulations, 2015Regulation 8
  • Criminal Procedure CodeSection 87(a)

Cases cited (2)

  • Mumo Matemo vs Trusted Society of Human Rights Alliance (2014) eKLR
    (2014) eKLR
  • Amanta Karimi Njeru vs Republic (No. 1)
    1979 KLR 154
Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 41, 47, 50, 73 and 236 invoked in the petition

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, "Nyangau v National Police Service Commission & 2 others (Constitutional Petition 5 of 2018) [2020] KEELRC 1941 (KLR)", Case Analysis (2020). Petition filed 22nd October 2018 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1941/eng@2020-01-30

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