Maingi v General & 4 others (Employment and Labour Relations Petition 108 of 2017) [2024] KEELRC 952 (KLR)
The bottom line
#A former police officer wrongfully dismissed for 15 years won back pay and compensation, with Kenya's National Police Service Commission held liable for its predecessor's actions.
What this practically means
#Executive summary
#Key legal issues
#Limitation
The petition, filed on 27th November 2017, was not time barred because the petitioner remained an employee up to his retirement in 2016 following reinstatement with retrospective effect
The court applied section 49(3)(a) of the Employment Act: upon reinstatement an employee is treated as if never terminated. Since the reinstatement was backdated to 1994 and the petitioner served until retiring on 24th November 2016, the cause of action was continuous and the suit filed on 27th November 2017 fell within time.
Constitutional violation
Keeping the petitioner out of employment for 15 years without pay and with no valid reason amounted to inhuman and degrading treatment and breached fair labour practices
The dismissal letter gave no evidence or detail of the alleged bribery. The appeal took an unreasonably long time to determine. Relying on section 70 and 74(1) of the repealed Constitution, the court found the 15-year unpaid exclusion inhuman and degrading, and a breach of the right to fair labour practices and fair remuneration.
Successor liability of the 4th Respondent
The National Police Service Commission is liable for the acts and omissions of its predecessor, the Public Service Commission, having taken over the human resource functions of the police force
Section 33 of Schedule 6 to the 2010 Constitution provides that an office or institution established under the Constitution is the legal successor of the corresponding office or institution under the former constitution, whether known by the same or new name. The NPC accordingly inherited the human resource function and liabilities of the PSC over the police service.
Quantum of unpaid dues
Parties were directed to agree on the salaries and benefits due for the years out of employment, with compensation of 10 months' salary for the rights violations
Because a good number of years were involved, the court ordered the parties to compute the accurate figures by consensus, to be confirmed at a mention on 7th May 2024 for a final award. Compensation for the constitutional violations was fixed at 10 months' salary based on the retirement salary.
Legal principles established
#- Where an employee is reinstated, he is to be treated in all respects as if he had not been terminated
- A constitutional petition seeking redress must set out with reasonable precision the provisions said to be infringed and the manner of infringement
- An office or institution established under the 2010 Constitution is the legal successor of the corresponding office or institution under the former constitution and assumes its liabilities
Court orders
#- 1.Judgment entered in favour of the petitioner on the amended petition dated 18th June 2020
- 2.No orders on prayer A (reinstatement) as the petitioner was already reinstated
- 3.Declaratory finding that the petitioner was treated against fair labour practices (prayer B)
- 4.Prayers C and D justified: parties to agree on the salaries and benefits due to the petitioner for the years he was out of employment up to reinstatement, with the court to mention the case on 7th May 2024 to receive agreed figures and give a final award
- 5.Compensation for violation of rights awarded at 10 months' salary equivalent based on the petitioner's salary at retirement, with the court to be advised on that salary
- 6.Prayer G (speculative) not granted
- 7.Costs awarded to the petitioner
- Jurisdiction invoked
- Sections 70, 74(1), 77 and 84 of the Repealed Constitution (as invoked by the Petitioner)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maingi v General & 4 others (Employment and Labour Relations Petition 108 of 2017) [2024] KEELRC 952 (KLR)", Case Analysis (2024). Not stated in extract (Amended Petition dated 18th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/952/eng@2024-04-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.