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ELRCPartially AllowedPetition dated 6th August 2020· [2024] KEELRC 2455 (KLR)

Ndieyira v Inspector-General of Police & 3 others (Petition E038 of 2020) [2024] KEELRC 2455 (KLR)

Employment and Labour Relations Court
26 September 2024
OKOCHARO KEBIRA
7,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a police officer's dismissal was unfair because he wasn't given a proper hearing, awarding him KShs. 1 million in damages.

What this practically means

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Executive summary

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The Petitioner, a former Administration Police officer enlisted in 2005, challenged his summary dismissal from the National Police Service following disciplinary (Orderly Room) proceedings held on 3rd November 2013 after a dispute over subsistence and welfare allowances during deployment to Todonyang. He sought declarations that the proceedings, the withholding of his salary from December 2013 to February 2014, and the dismissal (effected by a letter dated 29th November 2013) were unconstitutional, an order of certiorari, unpaid salary including earnings to retirement age, and general and exemplary damages. The 3rd Respondent (the National Police Service Commission) denied the allegations, contending the Petitioner defied lawful orders, was heard in the Orderly Room Proceedings, and that the Employment Act does not apply to police officers. The Court framed three issues: ultra vires, constitutional violations, and reliefs. On the first, it held that the disciplinary scheme under Article 246, Section 10 of the NPSC Act, Section 89 of the NPS Act and the Discipline Regulations permits the Inspector-General or an authorised officer to take disciplinary action, so the proceedings were not ultra vires. However, the Court found violations of Articles 10, 35, 41, 47 and 50: the Petitioner was not notified in writing of the charges, given the required time to prepare, allowed to cross-examine witnesses, or informed of the suspension pending dismissal; his salary was arbitrarily withheld; and the Orderly Room Proceedings were withheld despite demand. Judgment was entered for the Petitioner with declarations, general damages of KShs. 1,000,000, three months' unpaid salary, interest, and costs against the Respondents. Claims for salary to retirement age and exemplary damages were declined.

Key legal issues

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01

Whether the delegation of disciplinary proceedings to the 1st and 2nd Respondents was ultra vires Article 246(3)(b)

Holding

Not ultra vires; Section 10(4) of the NPSC Act and Regulation 4(7) of the NPSC (Discipline) Regulations permit the Inspector-General or an authorised officer to take disciplinary action, with the Commission's role including monitoring, review and appeals

Reasoning

The Court analysed Article 246, Section 10 of the NPSC Act, Section 89 of the NPS Act and the Discipline Regulations. It concluded that the statutory scheme expressly contemplates disciplinary action by the Inspector-General or authorised officers, with the Commission monitoring compliance, ratifying actions and hearing appeals. Accordingly, the Commission did not act improperly in allowing the proceedings, and the ultra vires doctrine did not assist the Petitioner.

p. 9
02

Whether the dismissal violated the Petitioner's rights to fair hearing, fair administrative action, fair labour practices and access to information

Holding

Yes; the dismissal was destitute of procedural fairness, the three-month salary withholding was arbitrary, and the refusal to supply the Orderly Room Proceedings violated Article 35

Reasoning

The Respondents produced no evidence that the Petitioner was notified in writing of the charges, given three days to show cause or seven days' notice of the hearing, and no waiver notice was tendered. The Petitioner was not allowed to cross-examine witnesses, and was not informed of the suspension pending dismissal. The salary withholding for December 2013 to February 2014 was unrefuted and unjustified, and the requested proceedings were never supplied despite demand.

p. 14
03

What reliefs should issue

Holding

Declarations of violation of Articles 10, 35, 41, 47 and 50; general damages of KShs. 1,000,000; unpaid salary for three months with interest; costs against the Respondents; anticipatory earnings and exemplary damages declined

Reasoning

Having found violations, the Court awarded general damages for the constitutional violations, assessed at KShs. 1,000,000, and the unpaid three months' salary. It declined the claim for salary to retirement age as not anchored in law or the contract, citing D.K. Marete v Teachers Service Commission, and declined exemplary damages absent material establishing exceptional circumstances. Interest and costs followed the outcome.

p. 15

Legal principles established

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  • Disciplinary proceedings against police service members are not necessarily exercisable directly by the National Police Service Commission; the Inspector-General or an authorised officer may take disciplinary action under the NPSC Act, the NPS Act and the Discipline Regulations
  • Anticipatory earnings up to retirement age are not recoverable as damages for unfair termination; no employment is permanent

Court orders

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  1. 1.It is declared that the Respondents contravened the Constitutional stipulations under Article 10, and violated the Petitioner's rights under Articles 35, 41, 47 and 50 of the Constitution
  2. 2.The Respondents shall pay the Petitioner damages for the said violation in the sum of KShs. 1,000,000
  3. 3.The Petitioner shall be paid his unpaid salary for the three months from December 2013 to February 2014
  4. 4.Interest on the awarded sum at court rates from the date of Judgment till full payment
  5. 5.The Respondents shall bear the costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 24, 28, 35, 41, 47, 50, 159(2)(d), 246, 248
  • Employment ActSections 3(2)(b), 41(2), 43, 45
  • National Police Service ActSections 88(2)(1)(b),(c),(g),(h) (Eighth Schedule), 89, 89(6)
  • National Police Service Commission ActSection 10
  • National Police Service Commission (Discipline) RegulationsRegulations 2, 4, 11, 13(4)
  • Fair Administrative Action ActSection 4
  • Force Standing Orders (Chapter, Revised Edition 2001[1962])Section 16
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries; Cabinet Secretary, Ministry of Industry, Trade & Co-operatives (Interested Party) Tanners Association of Kenya (Suing through its Chairman Robert Njoka Ex Parte Applicant
    [2019] eKLR
  • Council of Civil Service Unions v. Minister for the Civil Service
    [1984] UKHL 9
  • D.K. Marete vs Teachers Service Commission
    [2020] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR (Civil Appeal No. 25A of 2013)
  • Engineer Francis N. Gachuri v Energy Regulatory Commission
    [2013] eKLR (Industrial Cause No. 203 of 2011)
  • Rookes vs Bernard
    (1964) 1 ALL ER 367
Jurisdiction invoked
Articles 41, 47, 50 and 246 of the Constitution of Kenya, 2010 (constitutional petition challenging dismissal from the National Police Service)

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, "Ndieyira v Inspector-General of Police & 3 others (Petition E038 of 2020) [2024] KEELRC 2455 (KLR)", Case Analysis (2024). Petition dated 6th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2455/eng@2024-09-26

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