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ELRCDismissedNot stated in the judgment as provided

Chepkonga v National Police Service Commission (Petition E010 of 2021) [2023] KEELRC 980 (KLR)

Employment and Labour Relations Court
28 April 2023
3,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld a police officer's dismissal, ruling employers may fire staff whose conduct endangers others, even after partial procedural missteps.

What this practically means

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Executive summary

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The petitioner, a former administration police officer enlisted in 1993 and summarily dismissed on 17th May 2018, petitioned the Employment and Labour Relations Court alleging violation of his constitutional rights under Articles 10, 47, 48, 50 and 246(3)(b), Sections 4, 6 and 12 of the Fair Administrative Action Act and Section 46(1) of the National Police Service Act. He sought declaratory orders, certiorari to quash the disciplinary decision, reinstatement to the rank of corporal, compensation, costs and interest. His complaint centred on two Orderly Room Proceedings: one in October 2013 conducted in his absence with an altered punishment, and another in March 2017 in which he pleaded guilty to three discipline offences and was demoted; the Commission nonetheless dismissed him on grounds of public interest despite the County Disciplinary Appeal Review Board recommending reduction in rank instead. The respondent, through its Chief Executive Officer, maintained that discipline is its prerogative under the National Police Service Act, that the 2017 proceedings were procedurally sound, and that the petitioner's conduct, including failure to disarm a constable whose firearm discharge led to a death, drunkenness on duty and unauthorised discharge of ammunition, justified dismissal. Applying the reasonable employer test, the court found valid and justifiable reasons for dismissal, held the petitioner posed a risk to the public, fellow officers and himself, and declined to interfere with the Commission's decision. The petition was dismissed 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 was denied the right to fair administrative action
  2. 2.Whether the petitioner was denied the right to a fair hearing
  3. 3.Whether the petitioner was unfairly and unlawfully dismissed from service
  4. 4.Whether the petitioner is entitled to the remedies he is seeking

Key legal issues

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01

Whether the petitioner was denied fair administrative action and a fair hearing

Holding

No violation established; the second disciplinary process was conducted procedurally and the petitioner pleaded guilty to all counts

Reasoning

The court found the petitioner was subjected to two disciplinary processes. The 2017 proceedings were conducted with witnesses whom he cross-examined and he pleaded guilty; his previous conviction was taken into account in sentencing. The court did not accept the contention that the 2013 proceedings, conducted partly in his absence and delayed in forwarding, rendered the ultimate dismissal unlawful given the ratification role of the Commission.

p. 7
02

Whether the dismissal from the National Police Service was unfair and unlawful

Holding

Dismissal was justified; the petitioner's conduct was inconsistent with that of a disciplined officer

Reasoning

Applying the reasonable employer test, the court held that the petitioner's failure to disarm a constable who discharged a bullet killing a member of the public, and subsequent offences including being drunk on duty and discharging ammunition without orders, posed risks to the public, fellow officers and himself. Dismissal was proportionate and the court declined to interfere with the Commission's decision.

p. 7

Legal principles established

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  • In a claim for unfair termination of employment, the Court applies the test of a reasonable employer and will not interfere where dismissal is a proportionate disciplinary measure
  • Employment contracts are contracts for personal service founded on mutual trust, confidence and good faith
  • Courts will only interfere with an employer's exercise of disciplinary control where the process is flawed or there was a breach of the law

Court orders

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  1. 1.The petition is dismissed with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 10(1) and (2), 47(1)(2), 48, 50 and 246(3)(b) of the Constitution of Kenya; Fair Administrative Action Act; National Police Service Act

Relief refused

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Declaratory order that the petitioner's fundamental rights and freedoms were violated

Court found valid and justifiable reasons for dismissal and no violation established

p. 7

Order of certiorari to quash the proceedings and decision of the respondent

Petitioner did not demonstrate excess or lack of authority by the respondent

p. 6

Reinstatement to the Administrative Police Service at the rank of corporal

Dismissal found justified; petitioner's conduct inconsistent with that of a disciplined officer

p. 7

Compensation, interest and any other suitable orders

Petition dismissed as without merit

p. 7

Costs

The petition is dismissed with costs to the respondent

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 a claim for unfair termination of employment, the Court usually applies the test of a “reasonable employer”
p. 7Reasonable employer test
He posed a risk not only to the public he was meant to serve but also to other oficers working with him and a risk to himself through reckless use of firearm entrusted to him for the discharge of his duties.
p. 7Justification for dismissal of police officer
The Petition is therefore found without merit and is hereby dismissed with costs.
p. 7Disposition
It is so ordered.
p. 7Final orders

Issues in the judgment

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minor

Judgment does not state the petition case number; the disposition is undated in part and the coram records no counsel appearing

minor

Judgment refers to the petitioner variously as petitioner and claimant in the concluding analysis

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, "Chepkonga v National Police Service Commission (Petition E010 of 2021) [2023] KEELRC 980 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/980/eng@2023-04-28

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