Nderi & another v National Police Service Commission & another (Employment and Labour Relations Cause E183 of 2022) [2024] KEELRC 2422 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal was contemptuous of the court order of 12/10/2021
The dismissal was contemptuous and therefore illegal, unlawful, null and void ab initio
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.
Whether the suit offends the doctrine of exhaustion of internal remedies
It does not; the internal appeal process was pre-empted by interim court orders
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.
Whether the dismissal was fair and lawful
The dismissal was unlawful and unfair, violating natural justice and Article 50(2)(c) of the Constitution
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.
What reliefs the claimants are entitled to
Maximum 12 months' compensation, one month's notice pay, full pension, costs and interest; reinstatement refused
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.
Legal principles established
#- 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
#- 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.Kshs. 76,380/= in lieu of one month notice for Peter Nderi
- 3.Kshs. 63,475/= in lieu of one month notice for Samuel Ngumbi
- 4.Payment of full pension to the claimants from date of dismissal
- 5.Costs of the suit
- 6.Interest at court rates in respect of compensation and notice pay till payment in full
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.