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ELRCPartially AllowedELRC Cause (statement of claim dated 21/3/2022) — number not stated in judgment· [2024] KEELRC 2422 (KLR)

Nderi & another v National Police Service Commission & another (Employment and Labour Relations Cause E183 of 2022) [2024] KEELRC 2422 (KLR)

Employment and Labour Relations Court
3 October 2024
3,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled two police officers' dismissals void because the National Police Service ignored a court order halting disciplinary action, awarding them maximum compensation.

What this practically means

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Executive summary

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Two police officers, Peter Nderi and Samuel Ngumbi, were suspended by letter dated 1/10/2021 after orderly room proceedings on 23rd and 24th September 2021 in which they were allegedly caught on video taking bribes. They filed ELRC Judicial Review No. E027 of 2021, and on 12/10/2021 the court granted leave acting as stay of the suspension and of any further disciplinary action; the orders were served on the respondents on 15th and 19th October 2021. The respondents nonetheless dismissed the claimants by letters dated 3/11/2021, served on 26/11/2021. The claimants sued challenging the dismissals; the 1st respondent raised a preliminary objection based on exhaustion of internal remedies, citing the Muthiya case. The parties proceeded by pleadings and written submissions without oral evidence. The court framed four issues. It found the dismissal contemptuous of the subsisting court order, rendering it illegal, unlawful, null and void ab initio. It held the exhaustion doctrine inapplicable because the interim orders pre-empted any internal appeal, and the respondents' remedy was to seek review or setting aside of the orders. On the merits, the disciplinary process violated natural justice: the claimants were ambushed without prior notice of charges, without the seven working days guaranteed by the Standing Orders, without a colleague of choice, and tried on undisclosed, unclear video evidence, contrary to section 41(1) of the Employment Act and Article 50(2)(c) of the Constitution. Reinstatement was refused because the respondents were taken to have lost confidence in the claimants, but applying section 49(4) of the Employment Act and the Osero case, the court awarded maximum compensation of twelve months' salary, one month's notice pay, full pension, costs and interest. Judgment dated 3rd October 2024, Nairobi, by Mathews Nderi Nduma, Judge.

Key legal issues

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01

Whether the dismissal was contemptuous of the court order of 12/10/2021

Holding

The dismissal was contemptuous and therefore illegal, unlawful, null and void ab initio

Reasoning

The court orders of 12/10/2021 staying the suspension and barring further disciplinary action were served on the respondents on 15/10/2021 and 19/10/2021, evidenced by stamps and signatures. Despite this knowledge, the respondents issued dismissal letters on 3/11/2021. Neither respondent addressed the contempt issue in pleadings or submissions. The court adopted the Matiang'i dictum on the compulsive nature of court orders.

p. 5
02

Whether the suit offends the doctrine of exhaustion of internal remedies

Holding

It does not; the internal appeal process was pre-empted by interim court orders

Reasoning

The court held the claimants were entitled to seek judicial review of the orderly room proceedings. The right of appeal under section 43(1) had not kicked in because of the interim injunctive orders; the respondents' only lawful course was to seek review, variation or setting aside of the orders. The authorities relied on by the respondents were inapplicable since the matter was sub judice and the disciplinary process had been conducted in contempt of court.

p. 5
03

Whether the dismissal was fair and lawful

Holding

The dismissal was unlawful and unfair, violating natural justice and Article 50(2)(c) of the Constitution

Reasoning

The claimants were ambushed: charged and tried over two days without prior notice of charges, without the seven working days to show cause and prepare guaranteed by sections 15(1) and 15(3) of the National Police Service Standing Orders, without the right to be accompanied by a colleague of choice under section 14(3)(b) and section 41(1) of the Employment Act, and on the basis of unclear, undisclosed video evidence. This negated the cardinal rules of natural justice.

p. 6
04

What reliefs the claimants are entitled to

Holding

Maximum 12 months' compensation, one month's notice pay, full pension, costs and interest; reinstatement refused

Reasoning

Guided by section 49(4) of the Employment Act, and considering the unblemished service, the summary manner of dismissal without hearing, the lack of lawful evidence of contribution to the dismissal and the claimants' likely inability to find gainful security-sector employment, the court awarded maximum compensation under the Osero case. Reinstatement was declined because the unproven allegations made continued confidence untenable.

p. 7

Legal principles established

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  • Court orders are compulsive and peremptory and no party may choose whether to obey them; a dismissal effected in contempt of a subsisting court order is illegal, null and void ab initio
  • Where interim court orders pre-empt an internal disciplinary/appeal process, the doctrine of exhaustion of internal remedies does not apply
  • An employee facing disciplinary proceedings must be given clear charges in advance and sufficient time to prepare a defence

Court orders

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  1. 1.Maximum compensation of twelve (12) months' salary in the sum of Kshs. 916,560 for Peter Nderi and Kshs. 761,700 for Samuel Ngumbi respectively
  2. 2.Kshs. 76,380/= in lieu of one month notice for Peter Nderi
  3. 3.Kshs. 63,475/= in lieu of one month notice for Samuel Ngumbi
  4. 4.Payment of full pension to the claimants from date of dismissal
  5. 5.Costs of the suit
  6. 6.Interest at court rates in respect of compensation and notice pay till payment in full

Authorities

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Legislation

  • National Police Service Actsection 88(2) sub-section (1)(z)(aa), Eighth Schedule
  • National Police Service Commission Actsection 88(2)
  • National Police Service Standing Orders Chapter 30Regulation 48(1); Regulation 29(2); section 43(1); section 14(3)(b); section 18(1); section 15(1); section 15(3)
  • Employment Act, 2007section 41(1); section 49(4)
  • Constitution of Kenya 2010Article 27; Article 50(2)(c)

Cases cited (6)

  • Geofirey Muthiya and another versus Sanuel Muguna Henry and 1756 others
    [2015] eKLR
  • William Odhiambo Ramogi and 3 others versus Attorney General and 4 others
    [2019] eKLR
  • Dr Fred Matiang’i versus Miguna Miguna & 4 others
    (2018) eKLR
  • Rebecca Ana Maina and 2 others versus Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Rwanyarare and others versus Attorney General
    (2003) 2EA 664
  • George Osero versus the Hon Attorney General, National Police Service, and National Police Service Commission
    2019 eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes involving the claimants as police officers (Employment Act 2007; National Police Service Act framework)

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, "Nderi & another v National Police Service Commission & another (Employment and Labour Relations Cause E183 of 2022) [2024] KEELRC 2422 (KLR)", Case Analysis (2024). ELRC Cause (statement of claim dated 21/3/2022) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2422/eng@2024-10-03

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