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ELRCStruck OutPetition dated 18th February 2021· [2021] KEELRC 53 (KLR)

Nehemiah Kipkorir Terer & 3 others v National Police Service Commission & 2 others [2021] KEELRC 53 (KLR)

Employment and Labour Relations Court (High Court of Kenya)
14 December 2021
3,887 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 graduate police constables' discrimination petition because they skipped the police service's internal appeal process before going to court.

What this practically means

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Executive summary

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The Petitioners, Graduate Police Constables holding university degrees, petitioned against the National Police Service Commission, the Inspector General and the National Police Service, complaining that the recruitment of 300 Cadet Inspectors from the general public, to their exclusion, discriminated against them contrary to Articles 27, 28, 40, 41, 43 and 47 of the Constitution. They sought declarations of violation, an order of prohibition against further recruitment without staff audit and placement of existing Graduate Police Constables, and mandamus compelling consideration of their promotion applications. The Respondents replied that recruitment and promotion are distinct processes; the recruitment was open to serving officers; some Petitioners failed the mandatory age and KCSE grade requirements or were unsuccessful at interview; and the Petitioners had failed to exhaust internal complaint and appeal mechanisms under the Recruitment and Appointment Regulations 2015 and Promotion Regulations 2015. Written submissions were filed. The Court found the Petitioners had bypassed the internal appeal mechanisms, rendering the claim unripe and the Petition premature, and further found material non-disclosure of their participation in the impugned recruitment. The Court did not reach the merits of the discrimination claims. The Petition was struck out with no order as to costs.

Key legal issues

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01

Exhaustion of internal remedies

Holding

The Petitioners' failure to appeal under Regulation 21 of the Recruitment and Appointment Regulations 2015 and Regulation 14 of the Promotion Regulations 2015 rendered the Petition premature

Reasoning

The Court held that ripeness requires that necessary internal steps occur before judicial intervention. The Petitioners bypassed the complaints and appeal mechanisms under the Respondents' regulations, choosing instead to come to Court. The Court found this uncontroverted and concluded the claim was not ripe, the Petition premature and devoid of merit.

p. 4
02

Material non-disclosure

Holding

The Petitioners concealed their participation in the impugned recruitment process

Reasoning

The Court found the Petitioners did not disclose that some of them had applied, been shortlisted or interviewed in the Cadet Inspector recruitment. This non-disclosure undermined their case and contributed to the striking out of the Petition.

p. 4
03

Alleged discrimination

Holding

No discrimination established; the Respondents' actions did not breach Article 27

Reasoning

The Respondents demonstrated that the recruitment was open to both police officers and the public, that some Petitioners failed the mandatory age and grade requirements, and that the 2nd Petitioner was shortlisted and interviewed but unsuccessful. The Court found the Petitioners failed to demonstrate discrimination.

p. 4

Legal principles established

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  • A claimant must exhaust available internal dispute resolution mechanisms before approaching the Court; failure renders the claim unripe
  • Claims founded on concealed material non-disclosure are disfavoured by the Court

Court orders

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  1. 1.The Petition is struck out with no order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 10, 24, 27, 28, 40, 41, 43, 47, 159, 232, 244, 246
  • National Police Service Commission (Promotions) Regulations, 2015Regulations 7, 11(2), 14
  • National Police Service Commission (Recruitment and Appointment) Regulations, 2015Regulations 3, 4, 5, 19(2), 20, 21
  • National Police Service ActSection 10
  • National Police Service Commission Act 2011Section 28(f)

Cases cited (14)

  • Evans Muriuki Muthuri & 4 Others v The National Police Service Commission & 2 Others
    [2019] eKLR
  • National Police Service Commission & 2 Others v Evans Muriuki Muthuuri & 4 Others
    Nairobi Court of Appeal Civil Appeal No. 352 of 2019
  • Jared Juma v Kenya Broadcasting Corporation & 3 Others
    [2014] eKLR
  • Republic v Kenya School of Law & Another Ex parte Otene Richard Akomo & 41 Others; Council of Legal Education (Interested Party)
    [2020] eKLR
  • Harksen v Lane NO and Others
    (CCT9/97) [1997] ZACC 12
  • Regina v Secretary of State for the Home Department Ex parte Doody
    [1994] 1 AC 531
  • Judicial Service Commission v Mbalu Mutava & Another
    [2015] eKLR
  • Republic v Engineers Board of Kenya Ex parte Godfrey Ajoung Okumu
    [2018] eKLR
  • Kalpana H. Rawal v Judicial Service Commission & 4 Others
    [2015] eKLR
  • Anarita Karimi Njeru v The Republic
    (1976-1980) KLR 1272
  • Mumo Matemo v Trusted Society of Human Rights Alliance
    [2014] eKLR
  • Kenya Revenue Authority v Universal Corporation
    [2020] eKLR
  • Raila Odinga & 5 Others v Independent Electoral & Boundaries Commission & 5 Others
    [2013] eKLR
  • John Harun Mwau v Independent Electoral and Boundaries Commission & Another
    [2013] eKLR
Jurisdiction invoked
Constitution of Kenya 2010 - enforcement of Bill of Rights (Articles 10, 27, 28, 40, 41, 43, 47, 232, 244, 246)

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, "Nehemiah Kipkorir Terer & 3 others v National Police Service Commission & 2 others [2021] KEELRC 53 (KLR)", Case Analysis (2021). Petition dated 18th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/53/eng@2021-12-14

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