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ELRCPartially AllowedNot stated in the judgment provided· [2023] KEELRC 1881 (KLR)

Makokha v National Police Service Commission & 3 others (Petition E032 of 2023) [2023] KEELRC 1881 (KLR)

Employment and Labour Relations Court
4 August 2023
5,162 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a police officer removed from service after being acquitted in criminal court must be reinstated with full back pay.

What this practically means

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Executive summary

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A serving police officer was charged with defilement and, on the complainant and witnesses failing to attend, was acquitted on 21.12.2020 under section 202 of the Criminal Procedure Code. After his interdiction was lifted on 31.03.2021, he was on the same date served with a show-cause letter asking why he should not be removed from the National Police Service in the public interest, referring both to the defilement matter and to a 2011 Langata Road shooting incident in which an inquest had exonerated him. He replied in writing and, after appeal, his removal effective 2021 was upheld. The petitioner moved this Court by petition alleging violations of Articles 27, 28, 41, 47 and 50. The respondents argued that written representations sufficed, that internal discipline could proceed notwithstanding the acquittal, and that an ordinary employment claim rather than a petition lay. The Court held the petition was properly instituted; that written representations amounted to sufficient due process since no contested facts required an oral hearing; that reliance on the lifted Langata Road interdiction was unreasonable but not the operative ground; and that the sole ground of removal was the acquitted defilement suspicion, so the disciplinary process was an unconstitutional retrial. Following Koskei, Maingi and the Supreme Court's Shollei decision, the Court found violations of Articles 10, 27, 41, 47 and 50, granted certiorari quashing the removal, mandamus reinstating the petitioner with full back pay less PAYE by 01.10.2023, the declaration sought, and costs. The alternative dues claim was deemed abandoned.

Key legal issues

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01

Choice between constitutional petition and ordinary employment claim

Holding

The petitioner was properly before the Court by petition since alleged contractual issues ran into alleged constitutional violations

Reasoning

The Court held that where the pleaded contractual matters intertwine with alleged violations of fundamental rights and freedoms, the petitioner may elect to file a constitutional petition. The respondents' objection that an ordinary claim should have been filed was therefore unfounded.

p. 4
02

Whether failure to afford an oral disciplinary hearing breached the right to fair hearing

Holding

No violation; written representations sufficed as there were no contested facts requiring an oral hearing with examination of witnesses

Reasoning

The Court accepted that an oral hearing is consistent with Article 50 but found that on the facts, the reason for removal (the suspicion, charge and discharge) was not disputed in material detail. The petitioner did not ask to be heard and did not dispute the circumstances of the proposed removal, so there was no miscarriage of justice for want of a viva voce hearing.

p. 4
03

Effect of the petitioner's acquittal under section 202 of the Criminal Procedure Code on the disciplinary process

Holding

The acquittal was an unconditional discharge operating as a bar; the ensuing disciplinary removal was an unconstitutional retrial of matters on which the petitioner was acquitted

Reasoning

Relying on Mathew Kipchumba Koskei v Baringo Teachers SACCO, Joshua Muindi Maingi v NPSC and Gladys Boss Shollei v JSC, the Court held that once the petitioner was acquitted, the respondents were bound by that outcome. The sole reason for removal was the suspicion surrounding the defilement charge for which he was acquitted; subjecting him to a disciplinary process on that ground was a constitutionally untenable retrial under Article 50(2)(o).

p. 7
04

Whether reliance on the lifted Langata Road interdiction vitiated the removal

Holding

Unreasonable, but the removal was not thereby incurably defective since it was not the sole ground; ultimately removal was on the defilement-suspicion ground

Reasoning

The Court found the respondents acted unreasonably in invoking the earlier, lifted interdiction relating to the Langata Road incident. However, unreasonableness alone did not render the decision defective because it was not the operative ground. The operative ground was the acquitted defilement matter, which itself vitiated the removal.

p. 5
05

Violation of constitutional rights

Holding

Violations of Articles 10, 27, 41, 47 and 50 established; removal after acquittal amounted to cruel, inhuman and degrading treatment

Reasoning

The Court held that removing the petitioner after his acquittal amounted to mental torture and cruel, inhuman and degrading treatment. The declaration and judicial review orders sought would issue; failing to remedy would render the violated constitutional provisions to lack vivacity.

p. 9

Legal principles established

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  • Where an employee is acquitted by the criminal court, the employer that initiated criminal proceedings is bound by that acquittal and may not impose punishment on the same or substantially similar grounds in a disciplinary process
  • An acquittal under section 202 of the Criminal Procedure Code operates as a bar to subsequent disciplinary action founded on the same matters
  • The doctrine of autrefois acquit applies even to ensuing disciplinary processes, though they are civil in nature
  • Written representation in response to a show-cause letter may constitute sufficient due process where facts are not contested

Court orders

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  1. 1.Declaration that the act of the 3rd respondent in relieving the petitioner of his duties breached his constitutional rights under article 27(1), (2) and (3), 28, 41, 48 and 50 of the Constitution and is null and void
  2. 2.Order of judicial review of certiorari quashing the petitioner's removal from the Directorate of Criminal Investigations made on 23.11.2021
  3. 3.Order of judicial review of mandamus compelling the respondents to reinstate the petitioner to the Directorate of Criminal Investigations with full back payment and benefits effective the date of the impugned removal
  4. 4.Respondents to pay the petitioner's costs of the petition
  5. 5.Amounts due under order (3) to be payable less PAYE by 01.10.2023 and failing that, interest at court rates from the date of judgment till full payment
Jurisdiction invoked
Constitutional petition for violation of fundamental rights and freedoms under Articles 27, 28, 41, 47 and 50 of the Constitution of Kenya, 2010; judicial review relief under section 4 of the Fair Administrative Action 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, "Makokha v National Police Service Commission & 3 others (Petition E032 of 2023) [2023] KEELRC 1881 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1881/eng@2023-08-04

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