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ELRCDismissedNot stated in the judgment as provided

Kaino v Inspector General, National Police Service & 3 others (Petition E009 of 2022) [2023] KEELRC 961 (KLR)

Employment and Labour Relations Court
28 April 2023
ANABUODHA J N
4,082 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioner, a Police Constable in the General Service Unit recruited in 2016, petitioned the Court alleging that his dismissal from the National Police Service by letter dated December 30, 2021 breached Articles 10, 41, 47 and 236 of the Constitution and section 46 of the National Police Service Act. He sought declarations, certiorari to quash the dismissal, mandamus to compel reinstatement, one month's salary in lieu of notice, twelve months' compensation, salary from July 2021, general damages, and costs. He complained that he had been tried in absentia in multiple Orderly Room proceedings without notice of charges or opportunity to defend himself, and that his appeal against suspension was never considered. The 3rd Respondent, the National Police Service Commission, through a replying affidavit by its Acting Chief Executive Officer, contended that the petitioner had a history of indiscipline, wilfully disobeyed lawful commands to report to GSU Damajale Camp, absented himself without leave, declined to participate in disciplinary proceedings, and that trial in absentia is expressly provided for under the Commission's Regulations and Service Standing Orders. The court took judicial notice of the regimental nature of the police, held that the Employment Act's fairness standards do not strictly apply to disciplined forces, whose disputes are decided by reference to Force Standing Orders, and observed that the petitioner never appealed against most of the convictions but only against the dismissal. Concluding that the petitioner was a difficult worker who did not appreciate the discipline required in his duties, the court held the dismissal justified and dismissed the petition with costs.

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's rights under Articles 10, 41, 47 and 236 of the Constitution and section 46 of the National Police Service Act were breached by the respondents
  2. 2.Whether the disciplinary proceedings conducted in absentia and the dismissal by letter dated December 30, 2021 were null and void
  3. 3.Whether the petitioner is entitled to certiorari, mandamus (reinstatement), damages and costs

Key legal issues

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01

Applicability of Employment Act fairness standards to disciplined forces

Holding

The Employment Act does not strictly apply to the Kenya Police; the court is guided instead by the Force Standing Orders

Reasoning

Section 3(3) of the Employment Act excludes the Kenya Police. Such officers have their own disciplinary rules and processes in the Force Standing Orders, and the court's concern is only whether the National Police Service followed those standing orders.

p. 8
02

Whether trial in absentia under police standing orders breached the petitioner's right to fair hearing

Holding

Trial in absentia is provided for under the National Police Service Commission Regulations and Service Standing Orders; the petitioner was informed of proceedings and did not appeal most convictions

Reasoning

The petitioner attached letters informing him of Orderly Room proceedings conducted in his absence and the verdicts; he did not appeal against those convictions, only against the dismissal. Given the regimental nature of the police, the respondent was justified in dismissing him.

p. 6
03

Justification of the dismissal

Holding

The petitioner was a difficult worker who did not appreciate the discipline required; dismissal was justified

Reasoning

The court took judicial notice that the Police Service is a disciplined force with regimental instructions, observed the petitioner's disciplinary record and failure to appeal, and concluded the 3rd Respondent acted within the Force Standing Orders.

p. 8

Legal principles established

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  • Employment Act provisions on substantive and procedural fairness do not strictly apply to disciplined forces, whose disputes are determined by reference to their own Force Standing Orders
  • Article 24(5) permits legislation to limit rights, including labour relations under Article 41, for persons serving in the National Police Service

Court orders

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  1. 1.The petition is dismissed with costs
  2. 2.It is so ordered

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, 2010 (petition seeking enforcement of Bill of Rights, Articles 10, 41, 47, 236; Article 24(5) limitation)

Relief refused

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Declaration that the dismissal of December 30, 2021 was null and void for breach of Articles 10, 41, 47 and 236 and section 46 of the National Police Service Act

Court found the disciplinary process followed Force Standing Orders and the petitioner did not appeal most convictions

p. 8

Certiorari to quash the dismissal

Dismissal found justified

p. 8

Mandamus to reinstate the petitioner as Police Constable

Petition found without merit

p. 8

Damages (one month's salary in lieu of notice; 12 months' compensation; salary from July 2021; general damages)

Petition found without merit

p. 8

Costs

The petition is dismissed with costs to the respondents.

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.

In conclusion the petition is found without merit and is hereby dismissed with costs.
p. 8disposition - dismissal of the petition
The 3rd Respondent was therefore justified in dismissing him from service.
p. 8justification of dismissal from the National Police Service
Issues such as substantive and procedural fairness provided for in the Employment Act do not apply with regard to disciplined forces.
p. 8non-applicability of Employment Act fairness standards to disciplined forces
The Court takes judicial notice that Police Service is a disciplined force and instructions and operations are usually regimental in nature.
p. 7judicial notice of regimental nature of police service

Issues in the judgment

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minor

Judgment refers to the parties variously as Petitioner/Respondents and once as Claimant, and states the petition was 'based on' the same summary as the supporting affidavit

minor

Replicating affidavit dates appear internally inconsistent (e.g. off-duty commencing May 17, 2022 preceding May 24, 2021 deployment; declared AWOL on May 27, 2022)

minor

Petition section 46 of the National Police Service Act is pleaded but the judgment does not expressly analyse it

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, "Kaino v Inspector General, National Police Service & 3 others (Petition E009 of 2022) [2023] KEELRC 961 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/961/eng@2023-04-28

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