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ELRCPartially AllowedNot stated in the judgment (notice of motion dated 28th October 2021)· [2022] KEELRC 1461 (KLR)

Opondo v Director of Criminal Investigations & another (Judicial Review Application E028 of 2021) [2022] KEELRC 1461 (KLR)

Employment and Labour Relations Court of Kenya
15 June 2022
4,988 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled police can't transfer an officer as punishment before investigating allegations and hearing their side, suspending the transfer.

What this practically means

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Executive summary

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The Applicant, a police officer attached to Githurai-Kimbo Police Station and the lead investigator in a theft case implicating Kenya Power and Lighting Company employees, was transferred to Banisa Police Station in Mandera County by a memo dated 20th August 2021 and subsequently charged before a disciplinary committee for disobeying lawful orders. He sought conservatory orders, certiorari to quash the transfer memo and the disciplinary proceedings, and prohibitory orders. The Respondents maintained the transfers were routine administrative actions affecting over 130 newly promoted officers and that the Applicant had not exhausted internal appeal mechanisms. The Court framed two principal issues: whether the transfer was discriminatory, and whether the Applicant was entitled to the orders sought. It found the discrimination claim unsupported by evidence. However, it held the transfer irregular: the Respondents admitted the transfer was effected to pave way for investigations into bribery allegations, yet no investigation report or status was availed, the Applicant was never heard, and the Standing Orders expressly prohibit transfer as a disciplinary sanction. The Court also found the Applicant had not lodged a proper appeal under the applicable Regulations, his letters being mere complaints, making the suit premature. Balancing these findings, the Court granted the application only in part, suspending the transfer pending conclusion of investigations, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the Applicant's transfer was discriminatory

Holding

The allegation of discrimination was not established for lack of evidence

Reasoning

The Applicant alleged his colleague's transfer to Samburu was diverted to Ongata Rongai while his own appeal was dismissed. He produced no evidence of the colleague's appeal or its outcome, nor of his own appeal outcome, nor that identical applications to the same authority obtained different results. The transfer formed part of a memo affecting over 130 newly promoted officers.

p. 7
02

Whether the transfer to Banisa was regular

Holding

The transfer was irregular because it was a disciplinary sanction imposed before any investigation into the alleged corrupt activities and before the Applicant was heard

Reasoning

The Respondents admitted the transfer was to pave way for investigations into bribery allegations. The transfer was effected before investigations were carried out and before the Applicant's version was heard, yet the Standing Orders prohibit transfer as a disciplinary sanction. No investigation report or status was availed despite the affidavit being sworn six months after the transfer.

p. 10
03

Whether the Applicant exhausted internal mechanisms

Holding

The Applicant did not exhaust the prescribed internal appeal mechanism; his letters were complaints, not appeals, rendering the suit premature

Reasoning

Regulation 22 of the National Police Service Commission (Discipline) Regulations, 2015 prescribes the appeal process. The Applicant's letters to the Internal Affairs Unit and the Inspector General were requests for intervention over a malicious transfer, not appeals under the Standing Orders. The Court nonetheless found the transfer irregular and granted limited relief.

p. 9

Legal principles established

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  • A transfer cannot be used as a disciplinary sanction under the National Police Service Standing Orders
  • Employers may transfer employees but must comply with their own procedures and the law; courts will sparingly interfere with human resource functions
  • Transferring an officer on the basis of an uninvestigated complaint, without hearing him, offends fair administrative action

Court orders

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  1. 1.The Applicant's transfer to Banisa Police Station, Mandera County pursuant to Memo Ref No. CID/SEC/1/2/29/VOL.XXV/51 is suspended pending conclusion of the investigations on the alleged corrupt activities by the Applicant
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 20, 22, 27, 41, 47, 48, 159(2)(d)
  • Employment and Labour Relations ActSection 12
  • Fair Administrative Action ActSections 4(3), 7, 8, 9, 10
  • National Police Service ActSections 52, 88; Schedule 8
  • National Police Service Standing OrdersChapter 72; Chapter 30
  • National Police Service Commission (Discipline) Regulations, 2015Regulation 22
  • Employment ActSection 5
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Geoffrey Mworia v Water Resources Management Authority & 2 others
    [2015] eKLR
  • Republic v Minister for Interior and National Coordination & 3 others Ex-parte PC Stephen Munga
    [2015] eKLR
  • Francis Mbugua v Commissioner of Police & 2 others
    [2013] eKLR
  • Elory Kraneveld v Attorney General & 2 others
    [2012] eKLR
Jurisdiction invoked
Sections 12 of the Employment and Labour Relations Act; Sections 7, 8, 9 and 10 of the Fair Administrative Action Act; Articles 20, 22, 41 and 47 of the Constitution of Kenya, 2010

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, "Opondo v Director of Criminal Investigations & another (Judicial Review Application E028 of 2021) [2022] KEELRC 1461 (KLR)", Case Analysis (2022). Not stated in the judgment (notice of motion dated 28th October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1461/eng@2022-06-15

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