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ELRCPartially AllowedJudicial Review application dated 21st December 2020· [2024] KEELRC 328 (KLR)

Republic of Kenya v National Police Service Commission & 2 others; Nyabande (Exparte) (Judicial Review Application 37 of 2020) [2024] KEELRC 328 (KLR)

Employment and Labour Relations Court
14 February 2024
7,203 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court quashed a police officer's unfair dismissal, ruling the National Police Service Commission breached its own disciplinary rules and a promise of leniency.

What this practically means

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Executive summary

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The Exparte Applicant, an Administration Police Constable, was dismissed from the National Police Service following Orderly Room Proceedings held on 29th November 2016 after an altercation with his supervisor. He challenged the dismissal by judicial review, contending that he was given less than 24 hours' notice of the disciplinary hearing contrary to Regulation 17 of the NPSC (Discipline) Regulations, 2015, that no written reasons were recorded for waiving the notice requirement, and that the Commission's circular of 5th March 2018 directing reconsideration of harsh penalties, together with the County Disciplinary Appeals Board's recommendation that his dismissal be scaled down to a warning, created a legitimate expectation of a lenient penalty which was breached by the dismissal letter of 25th June 2019 and the failure to consider his review application. The Respondents maintained that the proceedings were fair, the offences gross, and that the Applicant's exhibits were forgeries. The court held that Regulation 17 is mandatory and was breached, and that the Commission, having abandoned the dismissal recommendation, was estopped from reverting to it, creating a legitimate expectation of reinstatement. Judgment was entered for the Applicant: declarations of unfair, arbitrary and Wednesbury unreasonable conduct contrary to Article 47 and the Fair Administrative Actions Act, certiorari quashing the dismissal, mandamus reinstating him, an order for payment of withheld half salary from December 2016 to 25th June 2019 (the interregnum deemed leave without pay), and costs against the 1st Respondent.

Key legal issues

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01

Compliance with Regulation 17 of the NPSC (Discipline) Regulations, 2015 on notice of disciplinary hearing

Holding

The disciplinary proceedings did not comply with Regulation 17: the Applicant received less than 24 hours' notice, and the Presiding Officer did not make the written statement of reasons required where the notice is waived

Reasoning

The notice was served at 17:57 hrs on 28th November 2016 for a hearing at 2pm on 29th November 2016, which the Respondents did not deny. Regulation 17 is mandatory and requires at least 24 hours' notice, waivable only in exceptional circumstances with a written statement of reasons. The Orderly Room Proceedings record contained no such statement, and since investigations were in fact conducted, the waiver provisions were inapplicable.

p. 12
02

Legitimate expectation of a lenient penalty

Holding

The letter of 5th March 2018 rejecting dismissal recommendations and the County Disciplinary Appeals Board's recommendation of 23rd March 2018 created a legitimate expectation of reinstatement with a warning

Reasoning

The Commission's circular directed that dismissal cases not warranting such penalties be reverted for justification; the Applicant was re-heard and a recommendation made to scale down dismissal to a warning and lift suspension. The Respondents' claim that the minutes were forgeries was unsupported - the burden of proving forgery lay on them, and contemporaneous letters corroborated the recommendation. The Commission was estopped from reverting to the abandoned dismissal recommendation.

p. 15
03

Appropriate reliefs

Holding

The Applicant was entitled to the declarations sought, certiorari quashing the dismissal, mandamus for reinstatement and payment of withheld half salary

Reasoning

Having found procedural non-compliance with Regulation 17 and breach of legitimate expectation, the court granted the substantive reliefs, tempering them by deeming the interregnum leave without pay and confining costs to the 1st Respondent.

p. 15

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • Where a decision-maker has by written representation abandoned an earlier decision, it is estopped from reverting to it and a legitimate expectation arises
  • The party alleging forgery bears the burden of proving it

Court orders

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  1. 1.A declaration that the 1st Respondent breached the Exparte Applicant's legitimate expectation to a lenient penalty by issuing a Dismissal letter departing from County Appeals Board Revised Recommendations and failing to give reasons for departing from them
  2. 2.A declaration that by failing to give reasons for the Dismissal letter dated 25th June 2019 disregarding the Revised Recommendations of the County Appeals Board, the Respondent acted unfairly and contrary to Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, 2015
  3. 3.A declaration that by failing to give reasons why the Exparte Applicant's Review Application was not considered, the Respondents acted unfairly, arbitrarily and contrary to Article 47 of the Constitution and section 4 of the Fair Administrative Action Act, 2015
  4. 4.A declaration that the 1st Respondent's conduct was Wednesbury Unreasonable for failing to take into account relevant factors under Regulation 13(6) of the NPSC Discipline Regulations
  5. 5.An order of certiorari quashing the decision of the 1st Respondent dated 25th June 2019 dismissing the Exparte Applicant from the Police Service
  6. 6.An order of Mandamus directing the 1st Respondent to immediately reinstate the Exparte Applicant into the police service
  7. 7.An order of Mandamus directing the 1st Respondent to pay the Exparte Applicant his withheld half salary from December 2016 to 25th June 2019
  8. 8.The period between dismissal and reinstatement deemed leave without pay
  9. 9.The 1st Respondent to bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Law Reform Act, Cap 26sections 8 and 9
  • Fair Administrative Actions Act, 2015section 4; section 11
  • Constitution of Kenya, 2010Articles 10, 47, 50, 156, 245, 246
  • National Police Service Commission (Discipline) Regulations, 2015Regulations 4(2), 4(3), 13(6), 17, 20
  • National Police Service Actsection 88(2) as read with 1(b), (c), (e), (f), (g) and (s)
  • Employment and Labour Relations Actsection 12
  • Evidence Actsection 107

Cases cited (8)

  • Republic vs Public Procurement Administrative Review Board & 2 others Ex-parte Pelt Security Services Limited
    [2018] eKLR
  • Thomas Odero Dullo vs National Police Service Commission
    NRB ELRC Petition No. 37 of 2018
  • Thomas Komo Alias Bilal Mohamed vs Republic
    (2013) eKLR
  • Susan Waithera Kariuki & 4 others vs Town Clerk Nairobi City Council & 3 others
    (2013) eKLR
  • Republic vs National Police Service Commission Ex-parte Daniel Chacha Chacha
    (2016) eKLR
  • AM vs Premier Academy
    (2017) eKLR
  • Municipal Council of Mombasa Vs Republic & Umoja Consultants Ltd
    (2002) eKLR
  • Justice Kalpana H. Rawal v Judicial Service Commission & 3 others
    [2016] eKLR
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules, sections 8 and 9 of the Law Reform Act, Cap 26, and section 11 of the Fair Administrative Actions Act, 2015

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, "Republic of Kenya v National Police Service Commission & 2 others; Nyabande (Exparte) (Judicial Review Application 37 of 2020) [2024] KEELRC 328 (KLR)", Case Analysis (2024). Judicial Review application dated 21st December 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/328/eng@2024-02-14

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