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ELRCPartially AllowedNot stated in excerpt (petition dated 16.09.2022)

Maina v National Police Service Commission & another (Petition 189 of 2022) [2023] KEELRC 3264 (KLR)

Employment and Labour Relations Court
7 December 2023
4,017 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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Kenya's Employment Court ruled that police vetting that forces officers to hand over self-incriminating financial records, without any complaint against them, violates the Constitution — and awarded Kshs.4 million.

What this practically means

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Executive summary

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The petitioner, formerly a Police Constable, petitioned the Employment and Labour Relations Court challenging her removal from the National Police Service on 06.12.2016 after failing a vetting exercise conducted by the National Police Service Commission. She alleged violations of Articles 27, 40, 47 and 50, having been made to supply Mpesa, bank and Sacco statements on the basis of which she was found to lack financial probity, and complained that the outcome of her vetting review hearing of 11.07.2017 was never communicated to her, while similarly placed colleagues were reinstated. The respondents maintained that she failed vetting on a balance of probabilities, that the review decision was forwarded through the Inspector-General and the Regional Police Commander, and that the suit was time barred under the Limitation of Actions Act, the Employment Act and the Public Authority Limitation Act. The court found the facts undisputed save receipt of the review decision, holding that its non-communication amounted to a continuing injury. Following the Supreme Court's decision in Gladys Boss Shollei and its own decision in Peter Kilonzo Katheka, the court held that the vetting, which compelled self-incriminating material without any complaint against the officer, violated Articles 47 and 50 and the non-derogable right under Article 25(c). Certiorari, injunction, reinstatement and back pay were declined as time barred, but the court entered judgment for the petitioner jointly and severally against the respondents for declarations of violation, damages of Kshs.4,000,000 with interest if unpaid by 01.06.2024, and costs of the suit.

Questions the Court framed

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

  1. 1.Whether there are disputed facts, in particular whether the petitioner received the decision on her vetting review application
  2. 2.Whether the petitioner's fundamental rights and freedoms under Articles 27, 40, 47 and 50 of the Constitution were violated by the 1st respondent's vetting and decision
  3. 3.What remedies, if any, the petitioner is entitled to

Key legal issues

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01

Whether the petitioner's right to a fair hearing was violated by the vetting process

Holding

Yes. The Commission required the petitioner to supply bank and Mpesa statements and speculatively found her culpable without verification or any complaint against her, violating Article 50 and the non-derogable right in Article 25(c)

Reasoning

The court relied on Gladys Boss Shollei (Supreme Court) confirming that the fair hearing right applies to all persons and is non-derogable, and adopted its reasoning in Peter Kilonzo Katheka that compelling officers to furnish self-incriminating financial material with a presumption of guilt pending exculpation is an unfair regime. It found the findings in Katheka fully applicable to this petition.

p. 5
02

Whether failure to deliver the vetting review outcome violated Articles 47 and 50

Holding

Yes. The review decision was never delivered to the petitioner despite her requests, breaching her right to fair administrative action and fair hearing, and the non-communication amounts to a continuing injury

Reasoning

The court found the only disputed fact was receipt of the review decision. The respondents alleged delivery but produced no evidence of it. The unexplained failure to communicate the outcome within a reasonable time established violation of Article 47(1) and the legitimate expectation of a timely verdict.

p. 5
03

Whether the 2nd respondent's limitation objection defeats the suit

Holding

The suit was not time barred in respect of the violations found because non-communication of the review decision was a continuing injury, but specific reliefs (certiorari, reinstatement, back pay) were time barred

Reasoning

The court treated the failure to communicate the review decision as a continuing injury allowing the constitutional claim to proceed. However, it applied the six-month rule for certiorari and section 12 of the ELRC Act's three-year window for reinstatement, both long lapsed by the filing of the petition on 16.09.2022.

p. 8
04

What remedies flow from the established violations

Holding

Two declarations and damages of Kshs.4,000,000 as reparation, consistent with the award in Peter Kilonzo Katheka; certiorari, injunction, reinstatement and back pay declined

Reasoning

Having found violation, the court moved to appropriate relief, awarding general damages calibrated to the recent similar Katheka case, payable jointly and severally by the respondents, with costs. The coercive reliefs were barred by limitation.

p. 8

Legal principles established

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  • The right to a fair hearing under Article 50(1), including its non-derogable fair trial component under Article 25(c), applies to vetting and other quasi-criminal disciplinary processes and cannot be limited
  • Failure to communicate an administrative decision to an affected person amounts to a continuing injury, stopping time from running against that limb of the claim
  • Compelling officers to supply self-incriminating material such as Mpesa and bank statements in vetting, without any complaint or adverse information against them, violates Articles 47 and 50 and the decision based on it is a nullity

Court orders

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  1. 1.Declaration that the petitioner's fundamental freedoms and rights under Chapter 4 of the Constitution have been infringed and/or violated by the 1st respondent
  2. 2.Declaration that the 1st respondent's vetting and decision arising thereof was in violation of the petitioner's fundamental rights under Articles 27, 40, 47 and 50 of the Constitution, 2010
  3. 3.Payment of Kshs.4,000,000.00 as compensation for violation of rights, jointly and severally by the respondents, with interest at court rates from the date of judgment if not paid by 01.06.2024
  4. 4.Payment of costs of the suit by the respondents

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 27, 40, 47 and 50 of the Constitution (enforcement of Bill of Rights jurisdiction); Employment and Labour Relations Court Act, section 12

Relief refused

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Order of judicial review to quash the 1st respondent's decision of 06.12.2016

The six-month period attached to certiorari had long lapsed by the time the petition was filed

p. 8

Order of injunction restraining implementation of the 06.12.2016 decision and order of reinstatement

Reinstatement is time barred under section 12 of the Employment and Labour Relations Court Act as three years had lapsed since removal; the injunction would essentially grant reinstatement

p. 8

Payment of salary and allowances from date of dismissal until date of reinstatement

Follows the refusal of reinstatement

p. 8

Costs

The respondents will pay costs of the suit.

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.

That was in clear violation of Article 50 of the Constitution barring self-incrimination and which right to fair trial or hearing could not be limited per Article 25(c) of the Constitution.
p. 5Non-derogable right to fair hearing in police vetting
The failure to communicate the decision amounts to a continuing injury in that regard.
p. 5Continuing injury and limitation
In conclusion, judgment is hereby entered for the petitioner against the respondents, jointly and severally for:
p. 8Final orders
Payment of Kshs.4,000,000.00 being compensation for violation of rights and by 01.06.2024 failing, interest to be payable thereon at Court rates from the date of this judgment till full payment.
p. 8Damages award in final orders
The respondents will pay costs of the suit.
p. 8Costs

Issues in the judgment

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minor

Judgment refers to the petitioner as 'him'/'petitioners' when summarising the 1st respondent's affidavit, although the petitioner is female

minor

Employment date stated as 31.06.2007, a date that does not exist

minor

Limitation dates appear internally inconsistent: removal on 06.12.2016 yet the limitation period said to have expired on 16.12.2019

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, "Maina v National Police Service Commission & another (Petition 189 of 2022) [2023] KEELRC 3264 (KLR)", Case Analysis (2023). Not stated in excerpt (petition dated 16.09.2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3264/eng@2023-12-07

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