[2015] KEELRC 525 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NO. 332 OF 2014

KENNETH MWANIKI NJIRIRI.................................................................... CLAIMANT

VERSUS

HON. ATTORNEY GENERAL for and on behalf of:

THE PERMANENT SECRETARY

OFFICE OF THE PRESIDENT…….................….……….…..........1ST RESPONDENT

THE COMMISSIONER OF POLICE………………...............……2ND RESPONDENT

THE PUBLIC SERVICE COMMISSION……...............………….3RD RESPONDENT

J U D G M E N T

INTRODUCTION

The claimant was a Chief inspector of police who was dismissed from the force for gross misconduct on 21. 7.2003 by the 2nd respondent. He had served the Kenya police force for 18 years. According to the claimant his dismissal was invalid null and void for having been done done ultra vires and without following the laid down procedure. That just before his dismissal, the claimant was unlawfully detained for 14 days as a result of which he fell sick and was hospitalized and suffered damage. He has therefore brought this suit claiming:

Declaration that he is still a bona fide employee of the 3rd respondent until a proper termination is done;

General damages for unlawful detention and/or confinement for 14 days;

Special damages of kshs.46,865;

Salary arrears from July 2003 at the rate of kshs.44,000 per month till payment in full;

Costs and interest; and

Any other relief that the court deems fit to grant.

The defendants filed a joint defence denying liability for the alleged unlawful detention and improper dismissal from the police force. According to them, the claimant was properly dismissed by the 2nd respondent acting within his scope and capacity and after following the right procedure. They therefore denied the reliefs sought by the suit. In addition the respondents raised preliminary objection to the suit on ground of time bar and want of Statutory Notice under the Government proceedings Act Cap.40 laws of Kenya.

The preliminary objection was heard by way of written submission and a ruling was delivered on 26. 6.2012 by Mwongo J, whereby he allowed the objection on the ground of time bar for the claim based on tort and dismissed the objection in respect of the claim based on the employment contract. The suit was then transferred to this court on 7. 7.2014 and heard on 8. 6.2015 when the claimant testified as Cw1 and the respondents called Mr. Bernard Otieno Ngaa as Rw1. Thereafter the parties filed written submissions.

Analysis and Determination

After carefully considering the pleadings, evidence and the submissions, it is clear that the claimant was employed by the 3rd Respondent as a Chief Inspector of Police and the Officer in charge of the Flying squad Mombasa until 21. 7.2003 when he was dismissed summarily by the 2nd respondent for gross misconduct. The issues for determination are:

Whether the termination of the employment was invalid, null and void for being done in breach of the laid down procedure and a person acting ultra vires.

Whether the reliefs sought should be granted.

Invalid termination of employment

Cw1 told the court that on 27. 3.2003 he was charged with 3 counts of misconduct in Orderly Room proceedings presided over by Mr, Hamis Mwaruwa Acting Inspector of Police and was convicted on count 1 and 2 and acquitted him on count 3 and thereafter forwarded the file to the Police Headquarters for sentencing. The said officer was not qualified to preside over such proceedings. That instead of a receiving his sentence, the claimant was invited to a second Orderly Room Proceedings presided over by a qualified officer, Senior Superintendant of police Mr. S.K. Tum on 28. 5.2003.

Despite the claimant’s objection on ground of procedure, the proceedings went on and he was convicted of the same two counts and acquitted on the third count as in the previous proceedings. The file was then forwarded to the Police Head Quarters for sentencing as in the earlier proceedings. Thereafter the claimant was served with a dismissal letter.

According the claimant the second orderly room proceedings ought to have been done within 30 day of the decision that reviewed and set aside the first orderly room proceedings. He therefore contended that the second proceedings having been done after the expiry of 30 days was incompetent and invalid. In addition the claimant contends that his dismissal was invalid because, being an employee of the 3rd respondent, the 2nd could not dismiss him but could only make recommendations to the 3rd respondent to make her independent decision.

Rw1 admitted that the claimant was dismissed after being charged and convicted in orderly room proceedings with gross misconduct, namely, idleness and negligent performance of duty. According to Rw1, the claimant charged suspects with simple and bailable robbery despite the existence of clear facts that supported a non bailable charge of robbery with violence. In addition the claimant failed to open an inquiry file in respect of one of the suspects in the said robbery who escaped from the police custody during a search at his residence.

Rw1 contended that after the dismissal, the claimant appealed to the 3rd respondent but the appeal was dismissed for the reason that there was no new ground to warrant a reversal of the decision by the 2nd respondent. He admitted that the claimant was employee of the 3rd respondent because of his rank as a commissioned officer but he contended that the 2nd responded had delegated powers to dismiss.

After carefully considering the foregoing contentions, the court finds on a balance of probability that the reason cited and the procedure followed to dismiss the claimant was valid and lawful. As regards the procedure followed before the dismissal, the court has considered the Police Standing Orders which is delegated legislation made under section 5 of the Police Act cap 84 laws of Kenya. Paragraph 30 of the said orders which was referred to by the respondents provides as follows:

“Any inspector may be removed from the force by the commissioner of police … for any reasons set out hereunder…”

Paragraph 36(i) of the said orders provides that:

“Any member of the inspectorate who is to be removed from the force under the provisions of paragraph 30 to 35, may appeal against such removal to the Public Service Commission”

The reasons for dismissal of an inspector are diverse but include any activities or behavior which the commissioner of police considers likely to prejudice the peace, good order or good governance in Kenya; or if he considers that it is in the public interest or interest of the force that the officer be removed. According to the record of the orderly Room proceedings produced as exhibits, the claimant admitted that he is the one who charged the suspects with the bailable offence of robbery instead of capital robbery.

He also admitted that he never opened file for inquiry in respect of one of the suspects who escaped from the police custody during a search. He was therefore convicted of the two counts and the commissioner of police dismissed him after considering the said misconduct on the part of the claimant as warranting his removal from the force. Thereafter the claimant appealed to the 3rd respondent but appeal was dismissed.

This court’s view based on the evidence laid before it, is that the claimant’s dismissal was well founded and was done according to the procedure set out under the Police Standing Orders aforesaid. Consequently, the court finds on a balance of probability that the claimant has not proved that his dismissal by the 2nd respondent on 21. 7.2003 was invalid, null and void.

Reliefs sought

In view of the foregoing finding, the claim by the claimant in respect of his contract of employment is dismissed. Likewise the claim based on tort of unlawful detention is declined for the reason that the same was struck out due to statutory time bar even before the trial.

Disposition

For the reasons stated above, the suit is dismissed with no costs.

Signed, dated and delivered at Mombasa this 25th day of September 2015

O.N. MAKAU

JUDGE