Alex Muriithi Nkanda v National Police Service Commission & 2 others [2021] KEELRC 1104 (KLR)
The bottom line
#Kenya's employment court quashed a police officer's transfer, ruling frequent, unexplained station changes can amount to unconstitutional workplace harassment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a violation of rights of the petitioner by the Respondents?
- 2.Whether the petitioner is entitled to the relief sought?
- 3.Who bears the costs of the cause?
Key legal issues
#Whether the petitioner's frequent and speedy 'deployments' violated his rights
Yes - the movements were punitive, frequent and unjustified, breaching Articles 27 and 47 and the Transfer and Deployment Regulations
The court compared the regulatory definitions of 'deployment' and 'transfer'. The petitioner's pay point and commanders changed, indicating transfers rather than deployments, effected with speed and frequency without explanation, amounting to unmitigated workplace harassment. On a balance of probabilities the petitioner's case overwhelmed the respondents' denial, and the alleged fabrication was not established.
Whether the petitioner was entitled to the relief sought
Yes - having proved violation, he was granted the declaratory, quashing and prohibitory reliefs sought
Having won on violation of rights, the petitioner became entitled to the reliefs sought. The court allowed the petition, quashed the transfer to Kizingitini, prohibited interference with his duties at Magumu, while preserving the respondents' normal employment powers and awarding costs to the petitioner.
Respondents' argument that Articles 41 and 47 do not apply to police officers under Article 24(5)
The court did not accept this as a bar; it found violation of Articles 27 and 47 on the facts
The 2nd and 3rd respondents contended that Article 24(5)(d) and section 47 of the National Police Service Act excluded these rights, and that the petition was premature for failure to exhaust internal mechanisms, citing Narok County Council v Transmara County Council. The court nonetheless found proven violations and allowed the petition.
Respondents' complaint that the petition lacked precision (Anarita Karimi Njeru) and relied on forgeries
Rejected; the court found the petitioner's case proved on a balance of probabilities
The respondents, relying on Godfrey Paul Okutoyi and Anarita Karimi Njeru, argued the pleadings were imprecise and that signals were forged and the case vexatious. The court found the allegations of fabrication unanswered in the petitioner's favour and held his evidence overwhelming the respondents' defence.
Legal principles established
#- Frequent and speedy movements of an officer disguised as 'deployment' when they move the pay point and station are punitive transfers requiring commission sanction under the Transfer and Deployment Regulations, 2015 and can breach Articles 27 and 47
- A party alleging violation of rights must prove the asserted facts on a balance of probabilities under section 107 of the Evidence Act
Court orders
#- 1.A declaration that the acts of the Respondents in frequently and speedily deploying and transferring the petitioner from Magumu Traffic Sub-Base, Nyandarua County to Kizingitini Police Station, Lamu County breached his constitutional rights under Articles 27 and 47 and the National Police Service Commission (Transfer and Deployment) Regulations, 2015
- 2.The transfer is null and void and is quashed
- 3.The respondents are prohibited from interfering in any way with the discharge of the petitioner's duties at Magumu Traffic Sub-Base
- 4.The orders are not an immunity for the petitioner to override employment rules and regulations
- 5.The orders are not a limitation on the respondents effecting normal work relations on the petitioner
- 6.Costs of the petition borne by the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22(1), 23 and 165 of the Constitution of Kenya, 2010 (enforcement of Bill of Rights)
Relief refused
#Interim/conservatory orders sought pending hearing
Petition determined on merits at final stage; interim relief overtaken by final orders
Blanket protection from any disciplinary action
Court qualified the orders to preserve the respondents' normal disciplinary and work-relations powers
Costs
The costs of this petition shall be borne by the Respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Petitioner has illustrated a case of unmitigated harassment on his part at the work place through frequent and unjustified deployments by his seniors.
Here, the petitioner's case overwhelms that of the respondents in a balance of probabilities.
A declaration be and is hereby issued that the acts of the Respondents in frequently and speedily deploying the petitioner from one station to another and currently transferring him from Magumu Traffic Sub Base, Nyandarua County with a time frame of three weeks to Kizingitini station, Lamu County is in breach of the petitioner's constitutional rights under Articles 27 and 47 of the Constitution and the National Police Service Commission (Transfer and Deployment) Regulation, 2015.
That this transfer is null and void for all interests and purposes and the same is quashed.
That the costs of this petition shall be borne by the Respondents.
Issues in the judgment
#Court and case number not expressly stated; the judgment does not name the court or a petition number, only 'a petition dated 16th September, 2020' delivered at Nyeri
Internal contradiction on whether the petitioner 'won' - the text at one point reads 'brings out a case in favour of the petition. His case overwhelms that of the petitioner.'
Inconsistent dates in the petitioner's deployment chronology (e.g. transfer 'w.e.f 26.2.20' for a letter dated 19th June 2020)
Typographical error referring to 'the Lenya police service'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Muriithi Nkanda v National Police Service Commission & 2 others [2021] KEELRC 1104 (KLR)", Case Analysis (2021). Petition dated 16th September, 2020 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1104/eng@2021-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.