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ELRCDismissedNot stated in the judgment· [2024] KEELRC 1201 (KLR)

Nyaga v National Police Service Commission & 2 others (Employment and Labour Relations Petition E048 of 2022) [2024] KEELRC 1201 (KLR)

Employment and Labour Relations Court
9 May 2024
MNMathews Nderi Nduma
2,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment and Labour Relations Court dismissed a police officer's claim that his dismissal for bribe-soliciting was unfair, because he failed to prove any rights violation.

What this practically means

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Executive summary

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The petitioner, a Police Constable employed by the National Police Service since 1996, was suspended on 26 July 2021 after a widely circulated video allegedly showed him collecting bribes from motorists while on traffic duties along Kangundo Road. He was subjected to orderly room and disciplinary proceedings, recommended for dismissal by the 2nd respondent, and dismissed by the 1st respondent (the National Police Service Commission) by a letter dated 18 August 2021 with effect from 26 July 2021, pursuant to section 88(2) read with the 8th Schedule and section 89(1) of the National Police Service Act. He petitioned the Employment and Labour Relations Court seeking declarations that Articles 41, 47, 48, 50 and 246(3)(b) of the Constitution were violated, compensation, mandamus compelling reinstatement with salary arrears, and costs. He complained he was not shown the video, denied time to prepare, representation, and a copy of the proceedings. The respondents maintained the process was lawful and fair under the NPSC (Discipline) Regulations 2015. The court delineated two issues: whether the rights pleaded were violated, and whether the reliefs were payable. It held that the Employment Act does not apply to the police; fairness is measured against Articles 41, 47, 50 and 246(3)(b). The petitioner produced no exculpatory evidence, gave no written response to the charges, and failed to discharge the burden of proving violation. The offence's manifest nature justified immediate action, and the waiver notice was procedural. The petition was dismissed in its entirety with no orders as to costs.

Key legal issues

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01

Whether the petitioner's constitutional rights (Articles 41, 47, 48, 50 and 246(3)(b)) were violated by the disciplinary process and dismissal

Holding

No violation was established. The petitioner was given an opportunity to defend himself, produced no exculpatory evidence, and the disciplinary process complied with the NPSC (Discipline) Regulations 2015.

Reasoning

The court held that the Employment Act does not apply to the police, so fairness is measured against Articles 41, 47, 50 and 246(3)(b) and the NPSC (Discipline) Regulations 2015. The petitioner faced a video evidencing solicitation of bribes, filed no written response to the charges, and offered no evidence placing his innocence in issue. The respondents considered the section 13(b) mitigation factors, and the waiver notice was procedural. The petitioner failed to discharge the onus of impugning the process.

p. 4
02

Whether the waiver notice and immediate disciplinary action without further investigation were lawful

Holding

The waiver notice was procedural and the glaring nature of the offence justified immediate action under section 4(2) of the NPSC (Discipline) Regulation 2015.

Reasoning

The court found the offence was clearly manifest on the video evidence, constituting an exceptional circumstance permitting the respondent to require the petitioner to answer charges without further investigation. The waiver notice under section 15(5) of the service standing orders preceded the substantive charges under section 88(2) of the National Police Service Act and was therefore procedural.

p. 5

Legal principles established

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  • The doctrine of constitutional avoidance does not apply to cases filed by police officers; the fairness of their dismissal is measured against constitutional provisions, not the Employment Act.
  • A petitioner alleging constitutional violation bears the burden of proving the violation on a preponderance of evidence.
  • Where an offence against discipline is clearly manifest, disciplinary authorities may call the officer to answer charges without further investigation.

Court orders

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  1. 1.The petition is dismissed in its entirety
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 48, 50, 246(3)(b)
  • Employment Act, 2007section 3(1)(b), sections 41, 43, 44, 45
  • National Police Service Act No. 11A of 2011 (as amended)section 10, section 88(2), section 89(1), 8th Schedule, paragraph 1(e)
  • National Police Service Commission Actsection 10
  • National Police Service Commission (Discipline) Regulations, 2015section 4(2), section 13(b)
  • Service Standing Orderssection 48(1), section 15(5)

Cases cited (3)

  • Gabriel Mutava v 2 others v Managing Director Kenya Ports Authority and another
    (2016) EKR
  • Susan Waithera Kariuki and 4 others v Town Clerk Nairobi City Council and 3 others
    [2013] eKLR
  • Thomas Odero Omollo v National Police Service Commission
    Nairobi ELRC Petition No. 37 of 2018
Jurisdiction invoked
Constitution of Kenya, 2010 - Bill of Rights enforcement (Articles 41, 47, 48, 50 and 246(3))

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, "Nyaga v National Police Service Commission & 2 others (Employment and Labour Relations Petition E048 of 2022) [2024] KEELRC 1201 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1201/eng@2024-05-09

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