[2016] KEELRC 319 (KLR)
The court held that none of the orders sought by the petitioner were merited at the interlocutory stage. Reinstatement is a final remedy that can only be granted after a full hearing on the merits, not at the interim stage. The employment relationship between the petitioner and the respondents ended over eight years...
Source-derived case information.
- Citation
- [2016] KEELRC 319 (KLR)
- Parties
- Applicant: Corporal Andrew Arisa; Respondent: National Police Service Commission; Respondent: Inspector General National Police Service; Respondent: Deputy Inspector General, Kenya Police Service; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 18 of 2016
- Procedural Posture
- Constitutional Petition / Interlocutory Application (ruling on Motion for Interim Conservatory Orders and Reinstatement)
- Outcome
- interlocutory application dismissed with costs to the respondents
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Dismissal, Reinstatement, Interlocutory Injunctions, Disciplinary Proceedings, Right to Fair Labour Practices
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Corporal Andrew Arisa
Applicant
National Police Service Commission
Respondent
Inspector General National Police Service
Respondent
Deputy Inspector General, Kenya Police Service
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Interlocutory Application (ruling on Motion for Interim Conservatory Orders and Reinstatement)
Legal Issues
- 1 Whether the petitioner is entitled to interim conservatory orders staying dismissal and reinstating him pending hearing of the petition.
- 2 Whether reinstatement can be granted as an interlocutory remedy before hearing the merits of the petition.
- 3 Whether the lapse of over 8 years since dismissal precludes interlocutory relief.
Ratio Decidendi
The court held that none of the orders sought by the petitioner were merited at the interlocutory stage. Reinstatement is a final remedy that can only be granted after a full hearing on the merits, not at the interim stage. The employment relationship between the petitioner and the respondents ended over eight years ago, and it would not be legally prudent to reverse that through an interlocutory motion. The alleged unconstitutionality or unfairness of the dismissal must be determined after hearing both parties at the substantive hearing of the petition. Accordingly, the court declined to exercise its discretion in favour of the petitioner and dismissed the motion with costs to the...
Court Disposition
interlocutory application dismissed with costs to the respondents
Orders
- The motion filed on 15 April 2016 is dismissed.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
PETITION NO. 18 OF 2016
IN THE MATTER OF CHAPTER 4 OF THE BILL OF RIGHTS ARTICLES 1,2,3(1), 10,19,20,21,22,23,25,27(1), (2) AND (3),28,41(1),47(1), 48,49,50(1),(2)(a) AND (o), 159(2),258,162 & 246(1), (2) & (3) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF THE EMPLOYMENT ACT 2007
AND
IN THE MATTER OF NATIONAL POLICE SERVICE ACT, 2011
AND
IN THE MATTER OF FORCE STANDING ORDERS UNDER THE POLICE ACT CAP 84 LAWS OF KENYA
AND
IN THE MATTER OF DISCIPLINARY/ORDERLY ROOM PROCEEDINGS
AND
IN THE MATTER OF DISMISSAL FROM THE NATIONAL POLICE SERVICE (FORMERLY POLICE FORCE)
BETWEEN
CORPORAL ANDREW ARISA PETITIONER
v
NATIONAL POLICE SERVICE COMMISSION 1ST RESPONDENT
INSPECTOR GENERAL NATIONAL
POLICE SERVICE 2ND RESPONDENT
DEPUTY INSPECTOR GENERAL, KENYA
POLICE SERVICE 3RD RESPONDENT
THE HON. ATTORNEY GENERAL 4TH RESPONDENT
RULING
1. The Petitioner was dismissed from the Police on 4 October 2008 after which he appealed internally against the dismissal. The appeal was also dismissed on 16 December 2011.
2. The dismissal of the appeal did not deter the Petitioner for he made a further appeal on 15 January 2013 which the Respondents acknowledged and told him to wait for a response which was not forthcoming forcing him to move to Court.
3. In Court, the Petitioner alleges that his dismissal was unconstitutional, unfair and illegal.
4. The Petitioner filed together with the Petition a motion under certificate of urgency seeking
1. ….
2. THAT the Honourable Court be pleased to issue interim conservatory orders against the respondents either by themselves and or their agents, servants and or any other officer acting under their command to stay any further dismissal proceedings and or approval and or confirmation of dismissal dated 4th October 2008 based on purported orderly room proceedings 4th October 2008 and or terminating the petitioners employment with the first respondent commission pending hearing and determination of this application.
3. THAT the Honourable Court be pleased to issue interim conservatory orders against the respondents either by themselves and or their agents, servants and or any other officer acting under their command to stay any further dismissal proceedings and or approval and or confirmation of dismissal dated 4th October 2008 based on purported orderly room proceedings 4th October 2008 and or terminating the petitioners employment with the first respondent commission pending hearing and determination of this Petition.
4. THAT the Honourable court be pleased to issue an order reinstating the Petitioner to his position in employment and payment of his salary and allowances from 4th October 2008 to date amounting to Kshs 5,347,200/- pending hearing and determination of this petition.
5. THAT such further and other relief be granted to the applicant as this court deems fit.
6. THAT cost of the application be borne by the respondents.
5. The Respondents, represented by the Honourable Attorney General filed Grounds of Opposition to the application on 22 September 2016, and the motion was urged the same day.
6. The Court has given due consideration to the material placed before it and has come to the conclusion that none of the orders sought are merited.
7. For one, reinstatement is generally a final remedy after a hearing on the merits and therefore cannot issue in this case at the interlocutory stage.
8. Two, the employment relationship sought to be conserved was brought to an end more than 8 years ago and therefore, it would not be legally prudent to reverse the wheel through an interlocutory motion.
9. Lastly, the unconstitutionality or unfairness of the dismissal ought to be determined after hearing the positions advanced by both the Petitioner and Respondents at the hearing of the Petition on the merits.
10. The Court therefore declines to exercise its discretion in favour of the Petitioner and dismisses the motion filed in Court on 15 April 2016 with costs to the Respondents.
Delivered, dated and signed in Nakuru on this 2nd day of November 2016.
Radido Stephen
Judge
Appearances
For Petitioner Mr. Mageto instructed by M’Njau & Mageto Advocates
For Respondents Mr. Kirui, Litigation Counsel, Office of the Attorney General
Court Assistant Nixon