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ELRCAllowedJudicial Review E018 of 2023· [2025] KEELRC 668 (KLR)

Republic v Inspector General of Police & 3 others; Samanda (Exparte Applicant) (Judicial Review E018 of 2023) (27 February 2025) (Interim Judgment) [2025] KEELRC 668 (KLR)

Employment and Labour Relations Court
27 February 2025
1,293 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 quashed a police officer's suspension after finding it was gender-based harassment and awarded her full back pay.

What this practically means

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Executive summary

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The ex-parte applicant, a police officer enlisted in the National Police Service in 2013, moved the Employment and Labour Relations Court at Nairobi by substantive motion for judicial review seeking certiorari to quash her suspension letter dated 18 May 2023 and the orderly room proceedings conducted against her, prohibition against further victimization or harassment, and mandamus compelling release of her salary. She deposed that a conflict arose with the Officer Commanding Diplomatic Police Station after an incident in which the OCS intruded his hand through her broken trousers zip while she was on duty, and that the OCS thereafter orchestrated false disciplinary proceedings, falsely booked her absent without leave, denied her audience and appeal rights, and suspended her without salary or adherence to laid-down procedure. The Respondents, through the affidavit of Elizabeth Marube, contended that the Applicant absented herself from duty for four days without notice of sickness, that she was duly notified of disciplinary proceedings and served in accordance with the Service Standing Orders, that she was found guilty and did not appeal, and that her rights were not violated. The court found the Respondents' conduct amounted to gross harassment on the basis of gender, violating Articles 27, 28 and 47 of the Constitution as read with the Fair Administrative Actions Act, 2015, and sections 88(2), 89 and 90 of the National Police Service Act and the Police Regulations. The court found the 3rd Respondent's conduct most reprehensible and reported the matter to the Inspector General of Police. Finding the Applicant had proved her case on a balance of probability, the court granted certiorari, prohibition and mandamus, with interest on the salary at court rates, and ordered the Respondents to pay the costs of the suit.

Key legal issues

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01

Whether the Respondents' conduct amounted to unlawful and unfair administrative action

Holding

The court found that the suspension and orderly proceedings violated Articles 27, 28 and 47 of the Constitution and sections 88(2), 89 and 90 of the National Police Service Act

Reasoning

The court found that the Officer Commanding Diplomatic Police Station's conduct, including the intrusive incident and the convening of orderly room proceedings without notice, amounted to gross gender-based harassment. This violated the Applicant's human dignity under Article 28, equality under Article 27, and fair administrative action under Article 47 read with section 4 of the Fair Administrative Actions Act, 2015, as well as the National Police Service Act and Police Regulations.

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02

Whether the Applicant proved her case to warrant the prerogative orders

Holding

The Applicant proved the matters placed before the court on a balance of probability and the application was granted in full

Reasoning

Weighing the Applicant's depositions against the Respondents' replying affidavit alleging absence from duty, the court found the Applicant had discharged the burden of proof on a balance of probability. The suspension without salary and without adherence to the laid-down procedure for suspension was unlawful, justifying certiorari, prohibition and mandamus, with the court additionally reporting the 3rd Respondent's conduct to the Inspector General.

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Legal principles established

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  • Disciplinary action against a police officer founded on gender-based harassment violates constitutional rights to dignity, equality and fair administrative action, and such administrative action must follow the National Police Service Act and the Service Standing Orders.

Court orders

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  1. 1.An order of Certiorari quashing the suspension letter dated 18th May 2023 and all the orderly proceedings conducted against the ex-parte Applicant by the 3rd Respondent leading to her suspension
  2. 2.An order of prohibition barring the Respondents from revisiting matters raised in the application or victimizing and/or harassing the ex-parte Applicant
  3. 3.An order of Mandamus compelling the Respondents to release the Applicant's full salary from date of suspension till payment in full
  4. 4.The attention of the Inspector General of Police drawn to the conduct of the 3rd Respondent for his attention and action
  5. 5.Payment in respect of the salary with interest at court rates from the date of suspension till payment in full
  6. 6.The Respondents to pay the costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 28
  • Constitution of KenyaArticle 47
  • Fair Administrative Actions Actsection 4
  • National Police Service Act No 11A of 2011sections 88(2), 89(1)(2)(3)(4)(5), 90 and Eighth Schedule
  • Police Regulations
Jurisdiction invoked
Judicial review jurisdiction of the Employment and Labour Relations Court; constitutional provisions Articles 27, 28 and 47 of the Constitution

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, "Republic v Inspector General of Police & 3 others; Samanda (Exparte Applicant) (Judicial Review E018 of 2023)  (27 February 2025) (Interim Judgment) [2025] KEELRC 668 (KLR)", Case Analysis (2025). Judicial Review E018 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/668/eng@2025-02-27

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