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ELRCDismissed· [2021] KEELRC 1976 (KLR)

Mukhtar Salat Mohamed v National Police Service Commission & 3 others [2021] KEELRC 1976 (KLR)

Employment and Labour Relations Court
16 March 2021
NMNzioki wa Makau
3,088 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A former police officer lost his challenge to dismissal because he waited seven years to file the case, and constitutional petitions don't escape Kenya's time limits.

What this practically means

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Executive summary

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The Petitioner, a former Administrative Police officer employed in 1999, was dismissed from the National Police Service by a letter dated 12th May 2012 from the then District Commissioner, Fafi District, following allegations that he assaulted a civilian with his firearm. He had been arrested in January 2012 and charged in a criminal case which ended in his acquittal on 25th April 2012, but orderly disciplinary proceedings were nonetheless conducted in his absence, leading to his dismissal. He petitioned the Court seeking declarations of constitutional violation, quashing of the dismissal, reinstatement, damages of Kshs 3 million, twelve months' salary as compensation, and arrears of salary and benefits, alleging breaches of Articles 41, 47, 35 and 28. The 1st Respondent, the National Police Service Commission, maintained that the disciplinary matter was heard and concluded before its operationalization and that the Commission lacked jurisdiction; the 2nd to 4th Respondents argued the claim was time-barred, that the acquittal resulted from withdrawal of the complaint rather than innocence, and that disciplinary proceedings are distinct from criminal trials. The Court, applying Ndolo J's decision in Benjamin Wachira Ndiithi, held that elevating an employment dispute into a constitutional petition does not escape limitation statutes. Noting the Petition was filed seven years after termination and that the Petitioner had been casual despite adequate opportunity, the Court found the Petition crafted to circumvent limitation law and dismissed it with costs to the 2nd, 3rd and 4th Respondents.

Key legal issues

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01

Limitation of actions in constitutional petitions founded on an employment dispute

Holding

The Petition, filed 7 years after the dismissal, was time-barred and an attempt to circumvent limitation law; the constitutional framing does not remove limitation statutes

Reasoning

The court held that although constitutional petitions are not subject to an express limitation period, they must be filed promptly and with plausible reasons for delay. The dismissal occurred on 12th May 2012 and the Petition was filed in 2019. The alleged violations arose squarely within the employment relationship, and the constitutional petition could not be used to sidestep limitation statutes governing the underlying contractual dispute. The Petitioner was also found to have been casual despite adequate opportunity to move the Court.

p. 3
02

Fair hearing in disciplinary proceedings and parallel criminal proceedings

Holding

Not reached on the merits; the claim failed on limitation. The Respondents argued the acquittal resulted from withdrawal, and that employer disciplinary proceedings are distinct from criminal trials with different standards of proof

Reasoning

The Petitioner alleged denial of notice, access to evidence and assistance in his defence, and that the orderly proceedings were conducted in parallel with a criminal case in which he was acquitted. The Respondents countered that the acquittal followed withdrawal of the complaint by the complainant, not a finding of innocence, and that an employer is not barred from disciplining an employee despite an acquittal. The court did not determine these issues, dismissing the Petition on limitation grounds.

p. 3

Legal principles established

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  • Elevating a contractual dispute into a constitutional petition does not escape the applicable statutes of limitation

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Costs of the Petition are awarded to the 2nd, 3rd and 4th Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 35(1) (printed as 351(1))
  • Constitution of KenyaArticle 28
  • Constitution of KenyaArticle 50(2)(b), (g) and (j)
  • Constitution of KenyaArticle 246(3)(b)
  • Constitution of KenyaArticle 25(c)
  • Constitution of KenyaArticle 22(1)
  • Constitution of KenyaArticle 23
  • Constitution of KenyaArticle 24
  • National Police Service Commission Act, 2011Section 10(1)(a)
  • Employment Act, 2007Section 90
  • Limitation of Actions ActSection 4
  • National Police Service ActSection 10

Cases cited (10)

  • Joan Akinyi Kabasellah & 2 Others v Attorney General
    [2014] eKLR, Petition No 41 of 2014
  • Joseph Migere Onoo v Attorney General
    [2015] eKLR, Petition No. 424 of 2013
  • Wellington Nzioka Kioko v Attorney General
    [2018] eKLR, Civil Appeal 268 of 2018
  • James Kanyiita Nderitu v Attorney General & Another
    [2012] eKLR, Petition No. 180 of 2011
  • Reuben Njuguna Gachukia & Another v Inspector General of the National Police Service & 4 Others
    [2019] eKLR, Constitutional Petition No. 436 of 2017
  • Siewchand Ramanoop v The AG of Trinidad & Tobago
    PC Appeal No. 13 of 2004
  • Benjamin Wachira Ndiithi v Public Service Commission & Another
    [2014] eKLR Cause No. 953 of 2010
  • Divecon Limited v Samani
    Civil Appeal Number 142 of 1997
  • Geoffrey Kiragu Njogu vs. The Public Service Commission
    [2014] eKLR, Civil Appeal No. 57 of 2014
  • Attorney General v Andrew Maina Githinji & Another
    [2016] eKLR, Civil Appeal No. 21 of 2015
Jurisdiction invoked
Articles 22(1), 23, 41, 47, 28 and 50 of the Constitution of Kenya (petition for violation of fundamental rights and freedoms)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mukhtar Salat Mohamed v National Police Service Commission & 3 others [2021] KEELRC 1976 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1976/eng@2021-03-16

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