Awiti v National Police Commission & 3 others (Employment and Labour Relations Petition E158 of 2023) [2024] KEELRC 2653 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the decision to subject the petitioner to internal disciplinary process after protracted criminal proceedings amounted to double jeopardy.
- 2.Whether the internal disciplinary processes were done fairly and justly.
- 3.Whether the petitioner's constitutional rights were infringed upon.
- 4.Whether the petitioner is entitled to the remedies sought.
Key legal issues
#Double jeopardy
Criminal proceedings and internal disciplinary processes are independent; acquittal is no bar to disciplinary action
The court adopted the settled position that criminal and internal disciplinary processes are independent and can proceed side by side, relying on Nyeri ELRC Cause No. E59 of 2021 and Gladys J Cherono v Board of Trustees of NSSF. It added that acquittal bars future discipline only if inordinately delayed.
Fairness of the disciplinary process
The removal was procedurally unfair
The court found the process offended section 41 of the Employment Act and sections 4(3) and (4) of the Fair Administrative Action Act, which require notice, reasons, a hearing and an opportunity to make representations. The respondents did not demonstrate compliance. It also found a chronological impossibility: a decision to remove said to be made on 11/6/2019 when the show-cause letter was dated 23/4/2021.
Alleged discrimination (Article 27)
Claim of discriminatory treatment failed on the facts, but the final orders declared a breach of article 27
The petitioner did not demonstrate that he was treated in a discriminatory manner compared to another employee facing a similar situation, so that submission failed. However, in the final orders the court declared that the petitioner's rights under articles 27, 41 and 47 were breached - an internal inconsistency in the judgment.
Violation of dignity, fair hearing and fair administrative action (Articles 28, 41 and 47)
Breaches established
The petitioner was kept out of service for almost two years after the criminal trial before being removed without a hearing and without justified authority. The manner of the disciplinary process offended article 41 on fair hearing and article 47 on fair administrative action, and constituted cruel, inhumane and undignified treatment under article 28.
Remedies
Reinstatement refused; damages of Kshs. 5 million awarded
Although the dismissal was unfair and unconstitutional, the long lapse of time since dismissal, viewed through section 90 of the Employment Act, made reinstatement impracticable. The court instead awarded the petitioner general damages of Kshs. 5 million for unlawful dismissal and breach of constitutional rights, with costs against the 1st respondent.
Legal principles established
#- An acquittal in criminal proceedings does not bar an employer from instituting subsequent internal disciplinary processes against the same employee, and doing so is not double jeopardy unless inordinately delayed.
- An employer who fails to prove that the reason for termination is valid and fair and that fair procedure was followed effects an unfair termination under section 45(2) of the Employment Act.
Court orders
#- 1.A declaration that the petitioner's dismissal from service was unprocedural, unjustified and in breach of the law and the Constitution of Kenya 2010.
- 2.A declaration that the petitioner's rights under articles 27, 41 and 47 of the Constitution were breached.
- 3.Reinstatement denied; in lieu, the petitioner to be paid damages for unlawful dismissal and breach of constitutional rights amounting to Kshs. 5 million.
- 4.The 1st respondent to pay costs of the petition plus interest at court rates with effect from the date of judgment.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 23(1) and 23(3) of the Constitution (petition for enforcement of fundamental rights and freedoms before the Employment and Labour Relations Court)
Relief refused
#Reinstatement into the National Police Service and restoration to payroll with payment of unpaid salaries and benefits from the date of removal until reinstatement
The lapse of time between dismissal and judgment, having regard to section 90 of the Employment Act, 2007, made reinstatement no longer a viable remedy
A permanent order restraining the Respondents from taking any adverse decision against the Petitioner on the basis of the impugned removal letter
Not specifically granted in the final orders; the court instead awarded damages
Costs
The 1st respondent to pay the costs of the petition plus interest at court rates with effect from the date of the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The petitioner’s dismissal from service was un procedural and unjustified and in breach of the law and the Constitution of Kenya 2010.
The petitioner’s rights under article 27, 41 and 47 of the Constitution were breached.
Given the lapse of time from the time of dismissal to date and in view of the provision of section 90 of the Employment Act, 2007 the remedy of reinstatement cannot lie for this petitioner.
The petitioner be paid damages for unlawful dismissal and breach of his constitutional rights amounting to 5 million.
It is therefore my finding that the petitioner removal from service was done without following due process as envisaged and is therefore unfair and unjustified as provided for under section 45(2) of the employment act 2007
the fact of an acquittal in criminal proceedings is not a bar to future internal disciplinary processes unless inordinately delayed and subsequent internal disciplinary process is not double jeopardy.
Issues in the judgment
#The judgment declares a breach of Article 27 (discrimination) in the final orders despite having expressly found that the discrimination claim failed on the evidence.
Chronological impossibility noted by the court itself: the decision to remove is recorded as made at a meeting on 11th June 2019 with effect from 9/8/2021, yet the notice to show cause was dated 23rd April 2021 and the response 30/4/2021.
The parties plead conflicting dates for the petitioner's response to the notice to show cause (the 1st Respondent pleads 29/6/2021 while the court records 30/4/2021).
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Awiti v National Police Commission & 3 others (Employment and Labour Relations Petition E158 of 2023) [2024] KEELRC 2653 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2653/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.