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ELRCPartially AllowedPetition dated 26th April 2024 (case number not stated in judgment)

Mwanza v National Police Service Commission & 3 others (Employment and Labour Relations Petition E065 of 2024) [2025] KEELRC 2468 (KLR)

Employment and Labour Relations Court of Kenya
22 September 2025
7,102 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court found a police officer's rushed disciplinary hearing unfair, but only awarded him terminal dues, not reinstatement.

What this practically means

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Executive summary

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The petitioner, a former Police Constable with the General Service Unit, was dismissed from the National Police Service after an incident on 4th January 2021 at Huruma Shopping Centre in which, while drunk, he discharged six rounds from his assigned G3 rifle and threatened to kill his then girlfriend. He sought a declaration that his dismissal breached Articles 27, 28, 41, 48 and 50 of the Constitution, judicial review orders of certiorari to quash the dismissal and mandamus to compel reinstatement, and in the alternative payment of all dues. The respondents maintained that he was issued a notice to show cause, waived notice of a hurried hearing, pleaded guilty before a Subordinate Disciplinary Committee under the NPSC Discipline Regulations 2015, and that his appeal was considered. The respondents also argued the petition lacked the precision required by the Anarita Karimi Njeru rule. The court, Hellen Wasilwa J, framed three issues and held that the disciplinary process was conducted unprocedurally: the petitioner faced the committee on 5th January 2021, the day after the alleged offence, without notice of the hearing and without the presiding officer recording written reasons for waiving notice as Regulation 11(6) required. Applying section 45(2) of the Employment Act, the dismissal was unfair and unlawful. The court found breaches of Articles 28, 41 and 50(2). The petition was partially allowed: a declaration of breach was issued, the petitioner was awarded terminal dues from the date of removal to the date of judgment, and the respondents were ordered to pay costs. Certiorari and reinstatement were not granted, the court having regard to the petitioner's admitted offence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petitioner was fairly and lawfully dismissed from the service.
  2. 2.Whether the petitioner's constitutional rights were breached.
  3. 3.Whether the petitioner is entitled to the remedies sought.

Key legal issues

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01

Whether the disciplinary process leading to dismissal was fair and lawful

Holding

The dismissal was not fair or lawful because the petitioner was subjected to a hurried subordinate disciplinary committee within 24 hours of the alleged offence, without notice of the hearing, and the waiver of notice was not supported by a written statement of reasons by the presiding officer as required by Regulation 11(6) of the NPSC Discipline Regulations 2015.

Reasoning

The offence was committed on 4/1/21 and the petitioner faced a subordinate disciplinary committee on 5/1/21 with a decision made against him the same day. Although respondents claimed the hearing proceeded under the Service Standing Orders with notice waived, Regulation 11(6) required the presiding officer to record written reasons for the waiver, which was never done. No hearing proceedings were exhibited, only a signature list. Applying section 45(2) of the Employment Act, the dismissal was therefore unfair and unlawful.

p. 13
02

Whether the petitioner's constitutional rights were breached

Holding

Yes - the petitioner's rights under Articles 28, 41 and 50(2) of the Constitution were infringed.

Reasoning

Article 41 implies fair labour practices which presuppose a fair disciplinary hearing. A flawed disciplinary process is a breach of one's dignity under Article 28. Article 50(2)(k) guarantees adequate time and facilities to prepare a defence, and the hurriedly convened proceedings without adequate notice denied the petitioner that opportunity. The court accordingly returned a verdict that Articles 28, 41 and 50(2) were breached. It did not make findings on Articles 27 and 48.

p. 14
03

Whether the petitioner is entitled to the remedies sought

Holding

Partially - the court granted a declaration of breach of rights and terminal dues, but not certiorari, reinstatement, or the other reliefs sought.

Reasoning

Having found breaches of Articles 28, 41 and 50(2), the court declared those rights violated. However, acknowledging that the petitioner admitted committing the offence of discharging his firearm while under the influence of alcohol, the court did not quash the dismissal or order reinstatement. Instead it directed payment of all terminal dues from the date of removal to the date of judgment, together with costs of the petition.

p. 14

Legal principles established

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  • A disciplinary hearing convened without adequate notice, and a waiver of notice not supported by a written statement of reasons by the presiding officer as required by the NPSC Discipline Regulations, renders the disciplinary process and the resultant dismissal unfair and unlawful.
  • Subjecting an officer to a flawed, hurried disciplinary process breaches the officer's dignity, right to fair labour practices and right to a fair hearing.
  • Failure to give adequate notice to prepare a defence infringes Article 50(2)(k) of the Constitution.

Court orders

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  1. 1.A declaration that the rights of the petitioner under articles 28, 41 and 50 of the Constitution were breached.
  2. 2.An order that the petitioner be paid all his terminal dues from the date of removal from employment to the date of the judgment.
  3. 3.The respondents to pay the costs of the petition.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 28, 41, 47 and 50 of the Constitution of Kenya; employment and fair administrative action claims in the ELRC

Relief refused

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Judicial review order of certiorari to quash the dismissal of 19th July 2021

The court did not grant the certiorari and mandamus orders sought; instead it issued only a declaration and terminal dues, presumably in view of the admitted offence

p. 14

Mandamus compelling reinstatement to the Police Service

Not granted; the court awarded terminal dues instead of reinstatement

p. 14

Costs

The respondent to pay costs of this petition.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having analyzed the proceedings, the petitioner was subjected to, it is in my finding that the proceedings were conducted unprocedurary.
p. 13unfair disciplinary process
In view of the provision of section 45(2) of the Employment Act 2007 it then follows that the petitioner was not fairly and legally dismissed from the service.
p. 14unfair dismissal
Indeed being subjected to a fiawed disciplinary process is a breach on ones dignity and therefore a breach of that right to dignity.
p. 14right to dignity - Article 28
Article 50(2)(k) envisages adequate time and facilities to prepare a defence. It is indeed true that the proceedings the petitioner was subjected to were hurriedly convened and he was not given any adequate notice to prepare for his defence.
p. 14fair hearing - Article 50(2)(k)
A declaration that the rights of the petitioner under articles 28, 41 and 50 of the Constitution were breached.
p. 14final orders - declaration
In view of the ofience the petitioner was subjected to and in which he admitted committing under the infiuence of alcohol, I direct that he be paid all his terminal dues from the date of removal from employment to the date of this judgment.
p. 14final orders - terminal dues
The respondent to pay costs of this petition.
p. 14final orders - costs

Issues in the judgment

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minor

The judgment misnumbers the NPSC Discipline Regulations provisions in the analysis, referring to 'Section 4(1)' followed by 'Under 55(2)' and 'section 17 of the PSC discipline regulation', which do not correspond cleanly to the regulation numbers cited by the parties (Regulations 4, 10 and 11), creating internal inconsistency in the cited provisions.

minor

The 1st Respondent's grounds of opposition state the Notice to Show Cause is dated 8th January 2021 while the 2nd to 4th Respondents and the court's own findings refer to a show cause letter dated 5th January 2021, an internal contradiction in the record on the date of the notice.

minor

The court grants a declaration of breach of Article 50 but frames the finding as Article 50(2), and does not explain why the certiorari and reinstatement reliefs were refused despite finding the dismissal unlawful, leaving the remedial reasoning implicit.

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, "Mwanza v National Police Service Commission & 3 others (Employment and Labour Relations Petition E065 of 2024) [2025] KEELRC 2468 (KLR)", Case Analysis (2025). Petition dated 26th April 2024 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2468/eng@2025-09-22

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