[2022] KEELRC 427 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

PETITION NUMBER E.073 OF 2020

IN THE MATTER OF: THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 27[1], [2], & [3], 28, 41[1], 47[1], & 50 OF THE CONSTITUTION OF KENYA; AND,

IN THE MATTER OF: THE INTERPRETATION, ENFORCEMENT AND PROTECTION OF THE BILL OF RIGHTS UNDER ARTICLES 19, 20, 21, 22, AND 258 OF THE CONSTITUTION OF KENYA.

BETWEEN

CHARLES MWAZO MWAIZINGA ............................................ PETITIONER

VERSUS

1. THE NATIONAL POLICE SERVICE COMMISSION

2. INSPECTOR-GENERAL OF POLICE

3. DIRECTORATE OF CRIMINAL INVESTIGATIONS.....RESPONDENTS

Rika J

Court Assistant: Emmanuel Kiprono

_____________________________

Nyachoti & Company Advocates for the Petitioner

Attorney- General for the Respondents

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JUDGMENT

1. The Petitioner enlisted in Police Force as it were, on 4th July 1981.

2. He rose through the ranks, from Police Constable, to the position of Senior Superintendent of Police [SSP].

3. He served for 38 years in various parts of Kenya.

4. He lastly was the County Criminal Investigating Officer [C.C.I.O], Wajir County, in the North-Eastern Region.

5. It was recommended by his Directorate of Criminal Investigations, to the Inspector- General of Police, through a letter dated 3rd February 2020, that the Petitioner is removed from National Police Service in public interest, under Section 52[1][e] of the National Police Service Act.

6. Prior to this recommendation, the Petitioner was issued a letter of suspension dated 7th October 2019, and a letter to show cause why he should not be removed from service, dated 17th October 2019.

7. There was a raft of accusations leading to the letters of suspension and show cause, as disclosed in the letters.

8. These are as highlighted below: -

On 1st October 2019, the Petitioner, being the in-charge of Wajir Duty Station, authorized No. 70794, PC Japhet Fondo to drive police vehicle registration No. GKB 739 G [ KCL 946 F], Toyota Land Cruiser, from Wajir to Nairobi. The vehicle was intercepted by a multi-agency team at Kanyonyo market, Garisa-Thika road, on 2nd October 2019, carrying illegal goods, which included 254 Kgs of cannabis sativa.

The Petitioner failed to take administrative action against Julius Kuraru Muriithi and John Kibui Muriuki, Police Constables under his command, who had deserted.

The Petitioner had several disciplinary actions taken against him for violating police disciplinary regulations.

While a member of a WhatsApp group named ‘DCI Sleuth,’ the Petitioner posted messages which were meant to cause disaffection in the Directorate.

9. The 1st Respondent invoking Article 245 [4] [c] of the Constitution of Kenya, dismissed the Petitioner from National Police Service with effect from 7th October 2019. The decision was taken, following a meeting of the 1st Respondent, held on 11th June 2019.

10. The Petitioner faults this decision. He states in his Petition that he was just 1 year to retirement, when the 1st Respondent suspended him.

11. He submits that the show cause letter, issued in bad faith, to justify a pre-conceived outcome.

12. He had already been vetted in 2015, and following the rigorous exercise, was issued certificate of suitability and competence to continue serving, on 9th October 2015. The certificate was never challenged by the 1st Respondent, or revoked.

13. It was malicious to rely on past disciplinary incidents, to judge the Petitioner.

14. The Petitioner answered all the allegations against him. He stated that the Officers who ferried illegal goods, did not have his permission to carry the goods. He was not aware that they carried illegal goods.

15. PC Joseph Kuraru was tried and pleaded guilty. The Petitioner forwarded trial proceedings to the Head Office. He took administrative action in accordance with Section 94 [2] of the National Police Service Act.

16. With regard to PC John Kibui Muriuki, the Petitioner explained that he only came to learn about his case, through DCI Head Office. The Officer had been struck off on desertion but was still on the payroll. There was no case file opened by the Head Office. In the course of investigating, the Petitioner found out that the Officer had mental challenges. The Petitioner offered that proper investigations surrounding the Officer should have been carried out.

17. On past disciplinary infractions, the Petitioner stuck with the explanation that he had been vetted and found suitable and competent to continue serving.

18. On his social media involvement, the Petitioner explained that this was in line with his constitutionally guaranteed freedom of expression. He did not post anything with the intention of causing disaffection.

19. He appealed against the decision to remove him from service. His Appeal is dated 13th May 2020, addressed to the Chairman, National Police Service Commission. The 1st Respondent wrote to the Petitioner on 25th June 2020 acknowledging receipt of the Appeal, but at the time of petitioning the Court, the Petitioner had not received any summons to appear before the 1st Respondent, or received any decision on the Appeal.

20. He submits that he was not granted fair administrative action, in accordance with Article 47 of the Constitution of Kenya.

21. The Petitioner prays for the following orders: -

I. Declaration that suspension vide the letter dated 7th October 2019 was unlawful, illegal and void ab initio.

II. Declaration that the removal of the Petitioner from service was unlawful, illegal and void ab initio.

III. Declaration that refusal by the 1st Respondent to communicate, consider and/ or make any findings with respect to the Petitioner’s Appeal dated 13th May 2020 is unlawful and unconstitutional.

IV. Declaration that the entire disciplinary proceedings against the Petitioner by the Respondents contravened the Petitioner’s rights to a fair hearing and fair administrative action, and the same are therefore unlawful and void ab initio.

V. The Respondent is compelled to expunge the records of the flawed disciplinary process from the Petitioner’s service record.

VI. Certificate of Service to issue.

VII. Special damages for unfair termination, loss of income as well as medical treatment costs, expended by the Petitioner as well as those to be expended in the future [ to be quantified at the hearing of tis Petition].

VIII. General damages in the sum of Kshs. 15,000,000 for the blatant violation of the Petitioner’s rights as well as for pain and suffering occasioned upon the Petitioner by the Respondent’s actions.

IX. The Petitioner be allowed access to pension and other terminal dues should he have attained retirement age at the time of determination of this Petition.

X. Costs be borne by the Respondents.

22. Senior Superintendent of Police, Emily Wangari, replied to the Petition, on behalf of the Respondents, in an Affidavit sworn on 18th January 2021.

23. She explains that suspension and removal from office of the Petitioner, was regular, legal, fair and carried out in accordance with the law.

24. He authorized PC Japhet Fondo to drive the Station Land Cruiser from Wajir to Nairobi, without a car commander. The vehicle was intercepted along Garissa- Thika highway ferrying illegal goods, including 245 Kgs of bhang.

25. The Petitioner received letter to show cause, and responded to all allegations. He was removed under the provisions of paragraph 52 [1] [e] of the Police Service Act. His allegation that his right to fair administrative action under Article 47 of the Constitution was violated, has no foundation. The 1st Respondent acted in accordance with its statutory and constitutional mandate.

26. His Appeal was received and forwarded to the 1st Respondent. Due to limited operations at the height of Covid-19 pandemic, it was not processed in good time. On resumption of operations, the 1st Respondent deliberated on the Appeal and disallowed it. This was communicated to the 2nd Respondent on 18th December 2020, and to the 3rd Respondent on 23rd December 2020. The 3rd Respondent in turn, communicated the decision to the Petitioner on 29th December 2020.

27. Disciplinary records of Police Officers are retained in the relevant personnel files, for transparency and accountability. The Court should not be misled into cleansing the Petitioner’s dark past through an order for expunging the record.

28. The Respondent was not unmindful of the Petitioner’s long service. He was advised on his entitlement to substantial retirement benefits. He has not initiated the process to access the retirement benefits. He does not merit the prayer for damages.

29. Officers are responsible for financing their medical care after retirement. He is not entitled to general damages quoted at Kshs. 15 million. He was removed fairly and in accordance with the law. It is up to him to initiate the process of payment of his retirement benefits. He was duly advised on retirement benefits, in his letter of removal.

30. The Respondents pray the Court to decline the Petition, submitting that the Petitioner’s objective is to enrich himself unjustly, at the expense of the taxpayers’ resources.

31. Parties agreed to have the Petition considered and disposed of through Written Submissions. They confirmed filing and exchange of their Submissions at the last appearance in virtual Court, on 30th November 2021.

32. The Written Submissions replicate what was pleaded by the Parties, and what is contained in their respective Affidavits, as summarized above, in this Judgment.

33. The 2nd and 3rd Respondents filed separate Submissions from those filed by the 1st Respondent. Suffice it to say that their Submissions reflect the position taken by SSP Emily Wangari in her Affidavit, sworn on behalf of all the Respondents.

34. The issues as understood by the Court, are whether the Petitioner was discharged from the Police Service following a fair administrative process, on valid ground; and whether he merits the prayers sought.

The Court Finds: -

35. The Petitioner, Charles Mwazo Mwaizinga, was a Senior Police Officer, the County Criminal Investigation Officer [C.C.I.O], entrusted the insecurity-prone Wajir County, which borders the terrorist hotbed of Somalia.

36. He held a very heavy responsibility on his shoulders.

37. He was enlisted in the Police Force in 1982. He served in various localities within the Republic of Kenya. He held various ranks. His last rank was SSP. He worked for 38 years and was about 1-year shy of retirement age, by the time he was removed from service.

38. He was suspended from duty on 7th October 2019. He was asked to show cause why he should not be removed from service, in a letter dated 3rd February 2020.

39. The allegations against him are captured at paragraph 8 of this Judgment, while his answers are shown at paragraphs 14 -18.

40. Was removal of the Petitioner founded on valid reason or reasons?

41. The Court is persuaded that the first charge, on release of the Police Land Cruiser to PC Japhet Fondo, afforded the 1st Respondent valid ground to justify removal of the Petitioner from service.

42. It was the Petitioner who authorized the journey. He signed the work ticket. He issued instructions to Fondo to drive from Wajir to Nairobi. Contrary to regulations, the vehicle was not assigned a car commander. The Petitioner himself did not board the same vehicle, yet he was traveling to Nairobi. He followed the vehicle from behind.

43. There is no dispute that the vehicle was intercepted at a curiously named market, Kanyonyo, along Garissa-Thika highway. It was intercepted by a multi-agency team. It was ferrying contraband goods, among then 245 Kgs of bangi.

44. The Petitioner offered various responses on this allegation. Initially, his position was that he did not authorize his Officers to ferry bangi to Nairobi. He was not aware of his Officers’ activities.

45. The 1st Respondent would be justified in thinking that the Petitioner was privy to his Officers’ illegal activities, or negligently allowed his Station’s car to be used for an illegal undertaking.

46. Valid reason to warrant dismissal of an Employee, under the employment law, is not a reason to be established by the Employer beyond reasonable doubt. It is sufficient that the Employer genuinely believes the reason to exist, at the time of dismissal.

47. A police vehicle captured live, carrying bangi, driven by a Police Constable, with a work ticket signed by his Station in-charge, is not a matter to be glossed over. The Petitioner was overall responsible for the Station vehicles, how they were used, and for any journeys made by his Drivers at and outside the County of Wajir.

48. In his Appeal, the Petitioner changed his explanation on the bangi incident, alleging this time, that the bangi was being ferried by a different car, a Toyota Probox, KBN 227 L.

49. It is not clear why the Petitioner was changing his story on appeal, but in the view of the Court, this change did his credibility no good. It would only add fire to the suspicion that the Petitioner knew more about the incident, than he cared to disclose. Would the County Criminal Investigation Officer, not know from the inception, from his Officers and his own intelligence sources, that a Toyota Probox, KBN 227 L was the vehicle arrested ferrying bangi? Why wait on Appeal to come up with the Probox story?

50. The 1st Respondent was not however required to show that the Petitioner was involved in transportation of bangi, or had knowledge of its transportation; it was sufficient that the Respondent genuinely believed the Petitioner was involved or was negligent, in giving his Officers room to transport an illegal drug to Nairobi, in a police vehicle.

51. The Petitioner does deny authoring the statements circulated in his WhatsApp group, dubbed ‘DCI Sleuths Family.’ The statements were particularized in the letter to show cause, and not denied by the Petitioner. They include the following: -

The fraud section was trivialized by some guy from the GSU who shamelessly said anybody even from the Anti-Stock Theft can investigate fraud. He misled one of the former Police Commissioners to cause the current mess.

We have Officers in the DCI who cannot record statements, leave alone case compilation.

We should keep asking out Father who art in heaven, to forgive for he did not know what he was doing. There is mess totally in DCI. People are suffering; people are crying to the Lord our God.

52. The Court does not think this afforded the 1st Respondent substantive justification to remove the Petitioner from Office. The Court agrees that the Petitioner was exercising his freedom of speech. His comments related to his view of his workplace, and cannot be interpreted as causing disaffection at the DCI. These were fair comments, made fairly by a concerned Employee, in a social group comprising his peers. It was constructive criticism and part of corporate introspection, which is to be encouraged and not frowned upon. The Respondents misunderstood this exercise of freedom of speech and thought as being incendiary. The Court does not see this as being a valid reason, to warrant dismissal from the service.

53. Past disciplinary actions taken against the Petitioner, would not on their own, justify dismissal. Appropriate actions had been taken for specific allegations. Those should have been left to lie, unless they were part of a continuing, repeated disciplinary offence. In particular, disciplinary lapses taking place before the Petitioner was cleared by the vetting board in 2015, and certified as fit to continue serving, should not have formed part of the grounds for his removal.

54. The Petitioner’s explanation on action he took against PC Joseph Kuraru for desertion, was satisfactory. He explained that the Constable was tried and pleaded guilty. Proceedings were forwarded to the Head Office on 22nd May 2018. The 1st Respondent states it did not receive originals of the proceedings and would not act on copies. The Court formed the view that there was a problem of communication between the Petitioner at Wajir and the Head Office at Nairobi. This was not a problem of the Petitioner’s making, and cannot not be taken as a valid reason to justify termination.

55. The Claimant did not give a clear answer with regard to allegations about the desertion of PC John Kibui Muriuki. He states he was not able to commence the process of trying the Officer for desertion, because the Head Office did not open a physical file in the matter. The 1st Respondent faulted the Petitioner for not generating report on the Officer, and sending report to the Head Office. The Court would agree with the 1st Respondent that as the Petitioner was the deserter’s immediate supervisor, he ought to have been proactive in initiating administrative action against the deserter. If it is true that the Officer was suffering mental problems as alleged by the Petitioner, it was for the Petitioner to communicate to the Head Office and enable the Head Office guide him in the process.

56. The 1st Respondent would again be justified in concluding that the Petitioner had not performed his duty as his role required him to perform, with respect to PC John Kibui Muriuki. It was stated by the 1st Respondent that this failure was pronounced by the fact that at the time, there were cases of Kenyans being radicalized by the terrorists across the border. It was important that the C.C.I.O Wajir, accounted for the whereabouts of his Officers.

57. The Court would therefore find that removal from office of the Petitioner was based on at least 2 valid grounds: he did not exercise his role prudently or diligently, with regard to the police vehicle which was intercepted ferrying 245 Kgs of bangi, at Garissa- Thika highway; and he failed to take adequate administrative action, with respect to deserter PC John Kibui Muriuki.

58. Procedure was fair. The allegations against the Petitioner were investigated. He was suspended. The grounds were specified. He was issued letter to show cause. He was given detailed charges, and an opportunity to answer every charge. He answered every charge. The matter went through the various disciplinary rungs of the National Police Service, culminating in retirement on public interest.

59. The Petitioner was advised on his right of appeal. He appealed, and even had the luxury of introducing fresh matters on appeal, such as his explanation that bangi was carried in a Probox, and not the police Land Cruiser. The 1st Respondent considered that Appeal, within the constraints of the Covid-19 public health situation. The decision to dismiss the Appeal was communicated through the Inspector-General and the Director of Criminal Investigations. There was no significant departure from the standards of fairness, contemplated by Article 47 of the Constitution of Kenya.

60. The Court is satisfied that there was nothing raised by the Petitioner in his Appeal, which would have substantially shifted the ground in his favour. At the heart of his removal was a very grave accusation of allowing to be used, or failing to prevent from being used, a Police vehicle as a means of transportation of an illegal drug and other contrabands.

61. Police Officers are supposed to prevent drug trafficking, not proliferate drug trafficking, using Police vehicles.

62. In the end, the 1st Respondent was not unmindful of the Petitioner’s many years of service. He was offered his retirement benefits, which he has not pursued. He was only left with 1 year in service. He ought to have accepted his retirement in public interest, collected his retirement benefits and moved on.

IT IS ORDERED: -

a. The Petition is declined.

b. No order on the costs.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 24TH DAY OF MARCH, 2022

JAMES RIKA

JUDGE