Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedPetition dated 23rd June 2020· [2021] KEELRC 1287 (KLR)

Maxwell Onduso v National Police Service & 3 others [2021] KEELRC 1287 (KLR)

Employment and Labour Relations Court
9 July 2021
MOMaureen Onyango
6,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

#

A Kenyan court quashed an Administration Police officer's suspension and dismissal and ordered his reinstatement because the police failed to investigate or hear him.

What this practically means

#

Executive summary

#
The Petitioner, an Administration Police Constable, challenged his suspension and dismissal by the Respondents, contending he was redeployed to and duly reported at Lamu West Sub-County, yet was charged in absentia at RBPU Kanyonyo with absenteeism and related offences, suspended on 26th March 2018 and dismissed with effect from 25th June 2019 without notice, show-cause opportunity or hearing, and that his appeals were never determined. He sought declarations of breach of Articles 25(c), 28, 41, 47 and 50, certiorari to quash the suspension and dismissal, mandamus to compel reinstatement, and compensation. The Respondents maintained the dismissal followed the National Police Service Act and Discipline Regulations, that the Employment Act did not apply, and that the suit was premature as his appeal was pending before the Service Disciplinary Appeals Board. The court framed four issues: applicable law, prematurity, validity of the suspension and dismissal, and entitlement to relief. It held that the Employment Act excludes Administration Police officers and that the National Police Service Act and Discipline Regulations apply; that the doctrine of exhaustion did not apply since the Respondents failed to determine the appeals within the prescribed regulatory periods; and that there was no valid reason for the disciplinary action, which arose from confusion over the Petitioner's posting and a failure to investigate. The disciplinary process violated the Regulations and the Petitioner's rights under Articles 41(1) and 47(1) and (2). The court issued a declaration of nullity, certiorari quashing both the suspension and the dismissal, and mandamus directing reinstatement without loss of benefits, rank or position, with costs to the Petitioner. The Petition therefore partially succeeded: compensation was not awarded.

Key legal issues

#
01

Applicable law

Holding

The Employment Act does not apply to an Administration Police officer; the National Police Service Act and the NPSC (Discipline) Regulations 2015 govern

Reasoning

Section 3(2) of the Employment Act expressly excludes the Kenya Police, Kenya Prisons Service and Administration Police. Having been engaged as an Administration Police Constable, the Petitioner's terms of service and discipline fall under the National Police Service Act and the Commission's Discipline Regulations, including orderly room procedure and the appeal mechanisms.

p. 6
02

Prematurity / exhaustion of remedies

Holding

Suit not premature; exhaustion doctrine inapplicable because the Respondents failed to determine the appeals within the regulatory timelines

Reasoning

The Regulations require an appeal to be heard and determined within specified periods (21 days for the panel, plus report and communication timelines). The Petitioner appealed both suspension and dismissal and reminded the Respondents repeatedly, yet nothing was done. Official inaction and unreasonable delay are recognized exceptions to exhaustion.

p. 7
03

Validity of suspension and dismissal

Holding

Both suspension and dismissal were without valid reason and in breach of the Discipline Regulations and the Constitution

Reasoning

The Petitioner was redeployed to and reported at Lamu West Sub-County, was on approved leave and was performing duty when charged with absenteeism at RBPU Kanyonyo. The charges arose from confusion over his posting. No investigations were done, no notice or show-cause issued, and orderly room proceedings were held in absentia without evidence of notification as Regulation 12 requires. The replying affidavit's account was found untruthful.

p. 10
04

Consequential remedies

Holding

Declaration of breach, certiorari to quash suspension and dismissal, and mandamus to reinstate without loss of benefits, rank or position

Reasoning

Having found violations of Articles 41(1) and 47(1) and (2), the court exercised its remedial jurisdiction to nullify the impugned administrative action, quash it by certiorari, and compel reinstatement. Compensation was not awarded despite being sought.

p. 11

Legal principles established

#
  • The Employment Act does not apply to members of the Administration Police Service; their discipline is governed by the National Police Service Act and the National Police Service Commission (Discipline) Regulations, 2015
  • Failure of an administrative body to determine an appeal within the prescribed regulatory timeframe entitles the aggrieved officer to come to court; the doctrine of exhaustion does not bar the claim
  • Disciplinary proceedings against a police officer must comply with the notification, show-cause and hearing requirements of the Discipline Regulations; proceedings conducted in breach are a nullity

Court orders

#
  1. 1.A declaration that the acts of the Respondents in suspending and dismissing the Petitioner from the Administration Police Service breached the Petitioner's constitutional rights under Articles 41(1) and 47(1) and (2) of the Constitution and are null and void for all intents and purposes
  2. 2.An order of Judicial Review of Certiorari quashing the suspension of the Petitioner made in an Orderly Room Proceeding conducted on 1st November 2017 at RBPU Headquarters Kanyonyo
  3. 3.An order of Judicial Review of Certiorari quashing the dismissal of the Petitioner from the Administration Police Service made on 25th June 2019
  4. 4.An order of Judicial Review of Mandamus directing the Respondents to reinstate the Petitioner to the Administration Police Service without loss of benefits, rank or position
  5. 5.The 1st Respondent to bear the Petitioner's costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 23(3), 25(c), 27, 28, 41(1), 47(1) and (2), 48, 50(1) and (2), 159(2)(d), 246(3)(b)
  • Employment Act, 2007Sections 3(2), 41, 43, 45
  • Fair Administrative Action Act, 2015Sections 4, 6
  • National Police Service Act, 2011Sections 88(1),(2), 89(1)(f) and (6), Part X, Eighth Schedule
  • National Police Service Commission (Discipline) Regulations, 2015Regulations 3, 5, 9, 10, 11, 12, 17, 22, 23
  • National Police Service Standing Orders (Legal Notice No. 100 of 9th June 2017)Chapter 30, Section 7(1) and (2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Armed Forces Act (Cap. 199)referenced in section 3(2) of the Employment Act
  • Code of Regulations (Revised 2006)Section N.3(4)

Cases cited (8)

  • Joseph Mwenda Mbuko v Provincial Police Officer & 2 Others
    (2013) eKLR
  • Edwin Kosgei Kibor & another v Inspector General of Police & 3 others
    [2018] eKLR
  • Joseph Sitonik v Attorney General & Another
    [2012] eKLR
  • Lloyd v McMahon
    [1987] AC 625, 720
  • Stephen Munga v Minister for Interior & National Coordination and Republic v Minister for Interior and National Coordination & 3 Others Ex-parte PC Stephen Munga
    [2015] eKLR
  • Geoffrey Mworia v Water Resources Management Authority
    [2015] eKLR
  • Corporal Thomas Othoo v National Police Service Commission & 3 others
    [2016] eKLR
  • Francis Mbugua v Commissioner of Police & 2 Others
Jurisdiction invoked
Articles 23, 41, 47, 50 and 258 of the Constitution of Kenya, 2010 (constitutional petition challenging suspension and dismissal from the Administration Police Service)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Maxwell Onduso v National Police Service & 3 others [2021] KEELRC 1287 (KLR)", Case Analysis (2021). Petition dated 23rd June 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1287/eng@2021-07-09

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