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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 2635 (KLR)

Lichina v National Police Service Commission & another (Cause E017 of 2024) [2024] KEELRC 2635 (KLR)

Employment and Labour Relations Court
24 October 2024
JKJemimah Keli
2,766 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to throw out a police officer's unfair termination claim, ruling the National Police Service Commission's shortcut objection could not bypass a full trial.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually by Jemimah Keli, Judge, on 24th October 2024, determines a Notice of Preliminary Objection dated 15th May 2024 filed by the 1st Respondent, the National Police Service Commission. The Claimant had sued seeking declarations that his employment was unlawfully and wrongfully terminated contrary to Articles 28, 41(1), 47, 48 and 50(1) of the Constitution and Section 45 of the Employment Act, reinstatement, salary arrears, damages for unlawful termination, notice pay, and general damages. The 1st Respondent objected that no cause of action arose against it because it had never terminated the Claimant's employment, only the Commission being empowered to remove officers from the National Police Service, and that the suit was frivolous, vexatious and an abuse of process. The Claimant countered that the objection was not a pure point of law, relying on the Mukisa Biscuit test, since facts would have to be ascertained. The Court agreed, holding that whether the Claimant's employment had been terminated was an unascertained factual question, and that striking out is discretionary and must be exercised with great caution. Noting the uncontroverted allegations of non-payment of salary and non-assignment of duties, the Court found the claim not hopeless and dismissed the preliminary objection with costs to the Claimant, granting the Respondents 21 days to file defence and directing mention for pretrial directions on 18th November 2024.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit test of a pure point of law

Holding

It did not; the facts (whether the Claimant's employment was terminated) were not ascertained, so the objection was improper

Reasoning

The Court held that whether the Claimant's employment had been terminated was a contested factual matter not ascertainable on the pleadings alone. Since the objection required ascertainment of facts, it failed the settled test that a preliminary objection must be a pure point of law on assumed pleaded facts. The claim raised uncontroverted issues of non-payment of salary and non-assignment of work warranting trial.

p. 6
02

Whether the suit should be struck out for disclosing no cause of action against the 1st Respondent

Holding

No; striking out is discretionary and would be a grave injustice where the claim raises serious, uncontroverted employment issues

Reasoning

Relying on Crescent Construction, the Court held that striking out is discretionary and must be exercised cautiously so that no litigant is driven from the seat of justice. The claim raised serious issues — non-payment of salary since February 2023 and non-assignment of duties — going to the core of the employment contract, which the Court had jurisdiction to determine at trial.

p. 6

Legal principles established

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  • A preliminary objection must be on a pure point of law and cannot be raised where facts have to be ascertained or judicial discretion exercised
  • The power to strike out pleadings is discretionary and must be exercised with the greatest care and caution

Court orders

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  1. 1.The Notice of Preliminary Objection by the 1st Respondent is held as improper and dismissed with costs to the Claimant in the cause
  2. 2.The Respondents are granted 21 days to file defence
  3. 3.The Claimant is at liberty to reply
  4. 4.Mention before the trial Court on the 18th November 2024 for pretrial directions

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 248, 246, 246(3), 47, 10, 232, 80, 28, 41(1), 48, 50(1)
  • Employment ActSection 45
  • National Police Service Commission ActSection 10(1)
  • National Police Service Commission Disciplinary RegulationsSection 3(2)
  • Civil Procedure RulesOrder 2 Rule 15; Order VI rule 13(1)(a)

Cases cited (4)

  • Crescent Construction Co Ltd v Delphis Bank Ltd
    (2007)
  • D.T. Dobie vs. Muchina
    (1982) KLR 1
  • Jevaj Sharifi & Co. vs. Chotail Pharmacy Stores
    (1960) EA 374
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, No. 11 of 2007; Articles 28, 41(1), 47, 48 and 50(1) of the Constitution invoked in the claim)

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, "Lichina v National Police Service Commission & another (Cause E017 of 2024) [2024] KEELRC 2635 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2635/eng@2024-10-24

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