Opondo v Director of Criminal Investigations & another (Judicial Review Application E028 of 2021) [2022] KEELRC 1461 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant's transfer was discriminatory
The allegation of discrimination was not established for lack of evidence
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.
Whether the transfer to Banisa was regular
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
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.
Whether the Applicant exhausted internal mechanisms
The Applicant did not exhaust the prescribed internal appeal mechanism; his letters were complaints, not appeals, rendering the suit premature
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.
Legal principles established
#- 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
#- 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.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.