https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1482

Karuri v Deputy Inspector-General, Kenya Police Service & 2 others (Petition E006 of 2024) [2026] KEELRC 1482 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1482 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Petition E006 of 2024 J Rika, J May 29, 2026 Between Stanley Mbugua Karuri Petitioner and The Deputy Inspector-General, Kenya Police Service 1st Respondent The Inspector-General of National Police Service 2nd Respondent The Police Service Commission 3rd Respondent Judgment 1.An ex parte Judgment was delivered in favour of the Petitioner, on 24th December 2024. 2.The Petitioner appeared dissatisfied with the Judgment, and filed a Notice of Appeal, which he later withdrew, on 21st January 2025. 3.It was agreed on 6th March 2025, that the Judgment is set aside, and the Respondents allowed to respond to the Petition. 4.The Petition was filed on 12th April 2024. It is founded on the affidavit of the Petitioner, sworn on 9th April 2024. He also filed 2 supplementary affidavits sworn on 12th May 2025, and further supplementary affidavit, sworn on 14th July 2025. 5.He was employed as a Police Constable, on 12th May 2011. He worked in various stations and units. 6.He was last stationed in Embu County. 7.He suffered tonsilitis. He was treated at Bliss Hospital, on 8th, 15th and 30th December 2016. 8.He was advised to undergo tonsillectomy. He was booked for the procedure in December 2016. He requested for sick off on 5th December 2016. The doctors went on strike, and the procedure could not go on. 9.He consulted Medicross Hospital, Nakuru, for checkup on 17th January 2017. The surgeon was unavailable, and he was advised to see a private specialist, Dr. Gitu. The specialist carried out the procedure on 21st January 2017. 10.The procedure did not resolve the problem, and the Petitioner was referred to another specialist Dr. Gathere at Menelik Hospital, Nairobi. The specialist recommended another surgical procedure. This could not take place, as the Petitioner was advised his medical cover was exhausted. His salary had been stopped by the Respondents. 11.He suffered depression, and was treated at Nakuru General Hospital. The depression went on until August 2018. 12.He states at paragraph 17 of the Petition, that he presented himself to the Regional Police Commander Eastern, on 14th August 2017 [his evidence is that his illness persisted until 2018. The charge against the Petitioner was that he was AWOL for 602 days. This would mean that he reappeared at Embu in August 2018, not 2017. His letter of appeal states that he reappeared at Embu on 14th August 2018]. He was referred to OCPD Embu. 13.He was informed that the Respondents had instituted Embu CM’s Court Criminal Case Number 18 of 2017 against him in his absence. The case was later withdrawn. 14.He was assured by Chief Inspector Osani, that he would resume duty. However, on 15th January 2019, he was suspended. He was asked to surrender his uniform and tools of work. 15.On 17th June 2020, he enquired about his suspension, and was issued a letter of dismissal. He was told that the Board had decided he is dismissed, with effect from 20th December 2016. 16.The Petitioner submits that the Respondents violated his constitutional rights. The criminal case was instituted without informing him. He was not summoned. This was in violation of his right to fair hearing under Article 50 [2][b] of the Constitution. 17.The Respondents ignored his medical evidence showing he suffered tonsilitis. He submits that the Respondents failed to pay heed to provision of Section 13[6] of a law which he does not name [paragraph 24 of the Petition]. His right to fair administrative action under Articles 47 and 24 [3] [b] was abrogated. There was no disciplinary hearing. At the same time the Petitioner submits that waiver notice was issued, after the hearing of the disciplinary case. 18.He was not given reason for dismissal, save that he was to serve as an example, to others in service. 19.He lodged an appeal with the Inspector General of Police, on 10th May 2022. The National Police Service was obliged to hear the appeal, but declined to do so, urging the Petitioner to seek review from the High Court. 20.His prayers are: -a.Declaration that the Petitioner’s right to fair administrative action under Article 47 was violated, as he was subjected to a subordinate disciplinary committee hearing, that breached the Standing Orders.b.Declaration that the Respondents violated the Petitioner’s right of fair hearing.c.Declaration that stoppage of the Petitioner’s salary breached the Employment Act and other employment regulations.d.Declaration that the Petitioner suffered mental anguish from withholding of his salary.e.Declaration that the Respondents violated the Petitioner’s right to fair labour practices, under Article 41 of the Constitution.f.Declaration that dismissal was null and void.g.Declaration that the Petitioner is entitled to compensation.h.Declaration that the Petitioner is entitled to withheld salary from December 2016 to-date.i.An order directing the 3rd Respondent to recruit back the Petitioner to service. 21.1st and 2nd Respondent’s Response: They submit through their affidavit, that indeed the Petitioner was enlisted as a Police Officer on 12th May 2011. 22.He was bound by the Terms of Service, Laws and Regulations governing the Service. He was dismissed on 20th December 2016 following a disciplinary conviction. He absented himself, and was declared a deserter, under Section 94 of the National Police Service Act. 23.He was removed from the payroll 30 days from the date he absented himself. Desertion is both a disciplinary and criminal offence. 24.When he presented himself, warrants of arrest issued against him in a criminal case brought against him were lifted. The criminal case was withdrawn. He was instead issued a letter to show cause, paving way for a disciplinary hearing under the Service Orders. 25.He conceded that he had absented himself in his response. He stated that he did so, on account of illness, which was exacerbated by stoppage of his salary. 26.He pleaded guilty to the charge of desertion. 27.The 1st and 2nd Respondent forwarded its findings and recommendation to the 3rd Respondent. The Petitioner was suspended, and was not entitled to salary. 28.The 3rd Respondent confirmed the findings of the disciplinary committee. The Petitioner appealed. His appeal was considered and disallowed on 21st December 2021. 29.The 1st and 2nd Respondents urge the Court to dismiss the Petition with costs. 30.3rd Respondent’s Case, is that it exercises disciplinary control over Police Officers, under Article 246 [3][b] and Section 10 [4] of the National Police Service Act. 31.The Petitioner was fairly and lawfully dismissed from service, for an offence against discipline, as provided for under Section 88 of the National Police Service Act [the Act]. 32.Section 94 of the Act states that where an Officer absents himself for a period exceeding 10 days, he is deemed to have deserted. Desertion is both a disciplinary and criminal offence. 33.The Petitioner was charged with a criminal offence which was withdrawn, after he reappeared, and the disciplinary process commenced. He was charged in disciplinary room proceedings in accordance with chapter 30 of the Service Standing Orders. 34.He was properly charged, before a properly constituted committee, headed by an Officer senior to the Petitioner. He was given an opportunity to be heard. 35.He pleaded guilty, and did not raise the issue concerning his illness at all, or in mitigation. 36.Chapters 48 and 68 of the Service Orders regulate medical leave for Officers. An Officer seeking such leave is required to present to his Commanding Officer a medical certificate, duly signed by a qualified medical practitioner. 37.The Petitioner was initially treated as an outpatient at Nakuru, and would communicate with the OCS Nakuru. Signal was raised initially, that the Petitioner was under treatment. Later, he failed to communicate his whereabouts. Had he been absent regularly, in accordance with the Service Standing Orders, the 3rd Respondent would have reasonably accommodated him. 38.He was properly suspended and subsequently dismissed. 39.He was convicted on his own plea of guilty. He appealed. His appeal was presented after an inordinate delay, and it was noted in declining it, that he had been convicted upon his own admission of guilt. 40.The 3rd Respondent urges the Court to dismiss the Petition. 41.The Petition was last mentioned before the Court on 13th March 2026, when the Parties confirmed / undertook filing and exchange of their final submissions. 42.The issues are whether the Petitioner was dismissed from police service fairly and lawfully, for a valid reason; and whether he merits the remedies sought. The Court Finds:- 43.The Petitioner was recruited as a Police Constable, on 12th May 2011. 44.He was last posted to Embu County. 45.He states, and there is nothing on record to contradict him, that he suffered tonsilitis infection on 8th November 2016. He was treated on various dates and in different hospitals subsequently. 46.He states at paragraph 14 of his Petition, that he last consulted Dr. Samuel Gathere, an ENT expert at Menelik Hospital, Nairobi on 18th February 2017. He was advised to undergo a second surgical procedure, which could not take place, because the Petitioner had exhausted his medical cover, and the Respondents had stopped his salary. 47.The Petitioner did not adequately account for his absence, from February 2017, to August 2018, when he states at paragraph 17 of the Petition, that he presented himself to the Regional Police Commander Eastern. 48.Section 30 of the Employment Act entitles Employees to sick leave, subject to production by the Employee of a certificate of incapacity to work, signed by a duly qualified medical practitioner. For an Employee to be entitled to sick leave with full pay, he shall notify, or cause to be notified as soon as is reasonably practicable, his Employer, of his absence. 49.From the perspective of the Employment Act, there must be produced by the Employee, a certificate of incapacity to work, not merely a certificate showing illness; there must be notification to the Employer; and notification must be immediate, or as soon as reasonably practicable. Where the Employee is so sick, as to be incapable of notifying the Employer himself, the law states that the Employee shall cause, the Employer to be notified. In other words, the Employee can send his relatives or friends to the Employer, to notify the Employer that he is sick and incapacitated to work. 50.Chapter 68 of the Service Standing Orders is worded slightly different, but the fundamentals on sick leave are similar. 51.Where an Officer is off duty on account of illness for more than 48 hours, he is to obtain and provide a medical certificate to the Employer, signed by a duly qualified medical practitioner. There must be early notification to the Service Headquarters, showing the nature of illness. 52.The Petitioner has not exhibited any certificate of incapacity to work, issued by a qualified medical practitioner, at any time during his prolonged absence. 53.It is correct however, that the Respondents were aware of his scheduled surgery for tonsilitis on 23rd December 2016. There is a signal sent from Police in Nakuru to the Petitioner’s Station in Embu, stating that he was due for surgery, at Medicross Hospital in Nakuru. 54.His Station at Embu sought further details from Nakuru on 29th December 2016, enquiring if the Petitioner had been admitted to hospital, or was an outpatient. Embu advised that the Petitioner had no history of illness, and had only been transferred to Embu recently. 55.From this enquiry, it would appear that the Petitioner had not supplied his Station Embu with a certificate of incapacity to work, duly signed by a medical practitioner, at the time he left for Nakuru. 56.Nakuru Station responded on 12th January 2017. It informed Embu that the Petitioner had undergone laboratory test for thyroid function on 19th December 2016. He was treated as an outpatient. 57.Further Nakuru Police Station reported that the Petitioner had declined to answer calls or respond to text messages, advising that appropriate action be taken against the Petitioner. 58.The Petitioner did not supply his immediate station with a certificate of incapacity to work, when he suffered tonsilitis. He may have been attended to by Doctors, but none issued him with a certificate of incapacity to work, which he presented to his Commanding Officer at Embu, within 48 hours of his illness, in accordance with Chapter 68 of the Service Standing Orders, or as provided for under Section 30 of the Employment Act. 59.The medical history narrated by the Petitioner after his thyroid function test at Medicross Hospital Nakuru, was not shared with the Respondents. 60.There is no evidence that he notified the Respondents that he was being treated at Menelik Hospital in Nairobi, and was scheduled for a surgical procedure there. There was no certificate of incapacity to work, issued to him at Menelik Hospital, which was availed to the Respondents. 61.Similarly, he did not supply the Respondents with a certificate of incapacity to work on account of clinical depression, issued by any doctor at Nakuru. The Petitioner states that he went into depression after his surgical procedure at Menelik failed on account of his exhausted medical cover and stopped salary. There is however not the slightest evidence that depression was communicated to his Station at Embu or even Nakuru. 62.At no point did the Petitioner suggest that he was bedridden, at home or at a hospital, or suggest that he was prevented by his medical condition, for 602 days, to travel to his Station at Embu, and present the necessary medical records, and seek authorization to be away even retrospectively. 63.It is difficult for a member of the disciplined forces to justify his absence from duty, without leave, for close to 2 years. 64.The last communication he had with Nakuru Station was as communicated by Nakuru to Embu, on 12th January 2017. 65.The Petitioner reappeared at Embu on 17th August 2018, 602 days, after he left. 66.He states that he presented himself to his Commanding Officer at Embu, after 602 days of absence. 67.He complains that the Respondents violated his right of fair hearing, by preferring criminal charges against him, in absentia. Section 94 of the National Police Service Act, 2011, states that that where an Officer is absent from duty without leave for a period exceeding 10 days, he shall, unless the contrary is proved, be considered a deserter. The Officer is subject to summary dismissal or imprisonment for a term not exceeding 2 years. 68.It was within the Respondents’ discretion to charge the Petitioner with the criminal offence of desertion. He was not in any way denied the right of a fair hearing. The criminal case was withdrawn, and the disciplinary process initiated, as soon as the Petitioner reappeared. 69.The OCPD Embu constituted a subordinate disciplinary committee to hear the Petitioner. The Presiding Officer was a Chief Inspector assisted by 3 Inspectors and a Corporal. 70.The Petitioner did not challenge the composition of the subordinate disciplinary committee, or dispute its mandate. 71.The orderly room proceedings show that the Petitioner was presented with the charge of absenting himself without leave, contrary to section 88[2] [h] of the 8th Schedule, National Police Service Act. 72.Particulars of the offence, that he was absent from 20th December 2016 to 14th August 2018, were read to the Petitioner. He was away for 602 days. 73.In response to the charge, he did not explain that he was away on account of illness or other just cause. 74.He stated in his own words: -“It is true sir, I absented for six hundred and two days without leave.’’ 75.In light of this admission, what is the basis of his Petition? 76.He does not posit that he was in any way coerced into admission. He agreed he was away without the leave of the Respondents. His admission of guilt is supported by evidence from himself and the Respondents. 77.Section 89 of the National Police Service Act, allowed the Respondents to impose the sanction of dismissal, upon his admission of guilt, in accordance with the Service Standing Orders and Article 47 of the Constitution. 78.Section 89 [5] allowed him to appeal, which he did, notwithstanding his admission of guilt at the trial. 79.His letter of appeal dated 19th May 2021,3 years after the orderly room proceedings and his plea of guilty, did not mention certificate of incapacity issued by a qualified medical practitioner, or mention that he notified the Respondents about his absence, in particular, for the prolonged period when he alleged he was clinically depressed. 80.He merely repeated his narrative about tonsilitis and depression, without trying to persuade the appellate organ that he was absent legally, under the Employment Act, the National Police Service Act, and the Service Standing Orders. 81.Significantly, he did not challenge his plea of guilty. He did not suggest that the plea was obtained involuntarily. He did not dispute any of the facts, read to him at the orderly room proceedings. 82.The Petition has no merit.It Is Ordered: -a.The Petition is declined.b.No order on the costs. DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAKURU, UNDER RULE 68[5] OF THE E&LRC [PROCEDURE] RULES, 2024, THIS 29TH DAY OF MAY 2026.JAMES RIKAJUDGE