Mwanza v National Police Service Commission & 3 others (Employment and Labour Relations Petition E065 of 2024) [2025] KEELRC 2468 (KLR)
The bottom line
#A Kenyan court found a police officer's rushed disciplinary hearing unfair, but only awarded him terminal dues, not reinstatement.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner was fairly and lawfully dismissed from the service.
- 2.Whether the petitioner's constitutional rights were breached.
- 3.Whether the petitioner is entitled to the remedies sought.
Key legal issues
#Whether the disciplinary process leading to dismissal was fair and lawful
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.
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.
Whether the petitioner's constitutional rights were breached
Yes - the petitioner's rights under Articles 28, 41 and 50(2) of the Constitution were infringed.
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.
Whether the petitioner is entitled to the remedies sought
Partially - the court granted a declaration of breach of rights and terminal dues, but not certiorari, reinstatement, or the other reliefs sought.
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.
Legal principles established
#- 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
#- 1.A declaration that the rights of the petitioner under articles 28, 41 and 50 of the Constitution were breached.
- 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.The respondents to pay the costs of the petition.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Mandamus compelling reinstatement to the Police Service
Not granted; the court awarded terminal dues instead of reinstatement
Costs
The respondent to pay costs of this petition.
Quotable passages
#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.
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.
Indeed being subjected to a fiawed disciplinary process is a breach on ones dignity and therefore a breach of that right to dignity.
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.
A declaration that the rights of the petitioner under articles 28, 41 and 50 of the Constitution were breached.
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.
The respondent to pay costs of this petition.
Issues in the judgment
#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.
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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.