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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 980 (KLR)

Chepkonga v National Police Service Commission (Petition E010 of 2021) [2023] KEELRC 980 (KLR)

Employment and Labour Relations Court
28 April 2023
ANAbuodha J. N.
3,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a police officer's dismissal, ruling employers may fire staff whose conduct endangers others, even after partial procedural missteps.

What this practically means

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Executive summary

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The petitioner, a former administration police officer enlisted in 1993 and summarily dismissed on 17th May 2018, petitioned the Employment and Labour Relations Court alleging violation of his constitutional rights under Articles 10, 47, 48, 50 and 246(3)(b), Sections 4, 6 and 12 of the Fair Administrative Action Act and Section 46(1) of the National Police Service Act. He sought declaratory orders, certiorari to quash the disciplinary decision, reinstatement to the rank of corporal, compensation, costs and interest. His complaint centred on two Orderly Room Proceedings: one in October 2013 conducted in his absence with an altered punishment, and another in March 2017 in which he pleaded guilty to three discipline offences and was demoted; the Commission nonetheless dismissed him on grounds of public interest despite the County Disciplinary Appeal Review Board recommending reduction in rank instead. The respondent, through its Chief Executive Officer, maintained that discipline is its prerogative under the National Police Service Act, that the 2017 proceedings were procedurally sound, and that the petitioner's conduct, including failure to disarm a constable whose firearm discharge led to a death, drunkenness on duty and unauthorised discharge of ammunition, justified dismissal. Applying the reasonable employer test, the court found valid and justifiable reasons for dismissal, held the petitioner posed a risk to the public, fellow officers and himself, and declined to interfere with the Commission's decision. The petition was dismissed with costs.

Key legal issues

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01

Whether the petitioner was denied fair administrative action and a fair hearing

Holding

No violation established; the second disciplinary process was conducted procedurally and the petitioner pleaded guilty to all counts

Reasoning

The court found the petitioner was subjected to two disciplinary processes. The 2017 proceedings were conducted with witnesses whom he cross-examined and he pleaded guilty; his previous conviction was taken into account in sentencing. The court did not accept the contention that the 2013 proceedings, conducted partly in his absence and delayed in forwarding, rendered the ultimate dismissal unlawful given the ratification role of the Commission.

p. 7
02

Whether the dismissal from the National Police Service was unfair and unlawful

Holding

Dismissal was justified; the petitioner's conduct was inconsistent with that of a disciplined officer

Reasoning

Applying the reasonable employer test, the court held that the petitioner's failure to disarm a constable who discharged a bullet killing a member of the public, and subsequent offences including being drunk on duty and discharging ammunition without orders, posed risks to the public, fellow officers and himself. Dismissal was proportionate and the court declined to interfere with the Commission's decision.

p. 7

Legal principles established

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  • In a claim for unfair termination of employment, the Court applies the test of a reasonable employer and will not interfere where dismissal is a proportionate disciplinary measure
  • Employment contracts are contracts for personal service founded on mutual trust, confidence and good faith
  • Courts will only interfere with an employer's exercise of disciplinary control where the process is flawed or there was a breach of the law

Court orders

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  1. 1.The petition is dismissed with costs
Jurisdiction invoked
Articles 10(1) and (2), 47(1)(2), 48, 50 and 246(3)(b) of the Constitution of Kenya; Fair Administrative Action Act; National Police Service Act

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, "Chepkonga v National Police Service Commission (Petition E010 of 2021) [2023] KEELRC 980 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/980/eng@2023-04-28

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