https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1749

Kinisu v National Police Service Commission & 3 others (Petition E164 of 2025) [2026] KEELRC 1749 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1749 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E164 of 2025 M Mbarũ, J June 25, 2026 Between Patrick Sifuna Kinisu Petitioner and The National Police Service Commission 1st Respondent Inspector General National Police Service 2nd Respondent Deputy Inspector General Kenya Police Service 3rd Respondent Hon. Attorney General 4th Respondent Judgment 1.The petitioner is seeking the following orders:a.A declaration that the respondents’ decision to dismiss the petitioner from service is unconstitutional, unlawful and consequently null and void.b.An order directing the respondents to immediately pay the petitioner's salary and allowances from May 2016 until his retirement in January 2022 or such later date as this court may determine as fair, just and expedient in view of the injustice visited upon the petitioner by the respondents.c.A declaration that the petitioner is entitled to and should immediately be paid his full retirement benefits.d.Declaration that the petitioner is entitled and should immediately be paid compensation for unlawful termination from service.e.A declaration that the petitioner is entitled to and should immediately be paid general and special damages to the extent and magnitude that the court deems fair, just and expedient.f.Interest on the above sums from the date they became due and payable to the date of actual payment, calculated at court rates or such other rate as this court deems just.g.Costs of the petition. 2.The petition is that the government employed the petitioner in the Ministry of Interior and Coordination of the national Government as an accountant, Grade 1, Job Group K. The 1st respondent, as an independent commission under Article 246 of the constitution, has the mandate to oversee, recruit, appoint and discipline members of the National Police Service. The 2nd respondent, established under Article 245 of the Constitution, is responsible for the overall command, administration, and operational control of the National Police Service. The 3rd respondent is established under Article 245 of the Constitution and has operational control over the National Police Service. The 4th respondent is the legal advisor to the government, and is responsible for protecting the public interest. 3.The petition is that on 15 November 1985, the petitioner was appointed as an account assistant in the government under the Ministry of Cooperative Development with effect from 7 October 1985. He rose through the ranks to attain Grade I, Job Group K, and then joined the Ministry of Internal Security and Provincial Administration, and eventually transferred to the Kenya Police Service under the Ministry. 4.The petition is that in 2016, the petitioner received a letter of deployment dated 18 February 2016, issued through the Commandant of Kenya Police College, deploying him to the Kenya Police headquarters with immediate effect and not later than 30 March 2016. 5.The petitioner reported to work at Vigilance House in Nairobi on 5 April 2016. He accompanied the deployment letter with a sick sheet explaining why he could not report on 30 March 2016 as directed. 6.Upon reporting, the head of the accounting unit advised the perpetrator that they needed to prepare a space for him. He was thus advised to remain at home until further communication on his allocated office and duties. 7.In May 2016, the petitioner realised that his salary had not been paid and that he had not heard from the head of accounts, as advised. Upon enquiry, the petitioner could not establish why his salary had been stopped. He felt frustrated and fell into severe depression. He travelled to his rural village in Bungoma County in desperation to dispose of some family assets and take care of his family. The poor financial situation had taken a toll on him. His wife got sick, and his daughter at the university dropped out. 8.In March 2019, the respondent met an officer who told him he was being sought. He travelled to Nairobi and reported to his employer, but was informed that his file could not be traced and had to stay at home until it was found. 9.In January 2020, the petitioner visited the employer’s office and was informed that his file had been forwarded to the 1st respondent. He followed up and was verbally told he had been dismissed from service. He was not provided with any document. He was advised to file an appeal, and, through a letter dated 20 February 2020, he lodged it against the dismissal. There was no response. 10.On 30 March 2021, the petitioner wrote a reminder on his appeal and dismissal. Through a letter dated 28 April 2021, the respondents indicated that they were looking into the matter. Another letter is due on 21 June 2022. 11.In a letter dated 18 July 2024, the petitioner wrote to the Commission on Administrative Justice (CAJ) with his complaint and an account of how the respondents had treated him. On 5 November 2024, CAJ wrote to the petitioner, stating that the respondent had communicated through a letter dated 4 October 2022, stating that the appeal had been denied and that he had been dismissed from service for absconding from duty. He was informed that a letter dated 8 August 2019 had been issued on the decision to terminate his employment from 18 June 2019. 12.The petition is that his rights under the Constitution were violated under Articles 10, 28, 41, and 47. His right to fair labour practices, fair administrative action, and the right to be treated with dignity were violated, and the orders sought in the petition should be issued with costs. 13.The petitioner filed his Supporting Affidavit to support his petition. 14.In response, only the 1st respondent filed a Replying Affidavit of Peter Leley, the chief executive officer, who avers that the petitioner failed to report back to work after his annual leave on 4 April 2016. 15.The petitioner filed his Further Affidavit and avers that the allegations that he failed to resume after his annual leave on 4 April 2016 are incorrect. He had been released from Kenya Police College, Kiganjo, to report to Nairobi on 30 March 2016. There is an office release letter dated 25 February 2016. He was officially deployed in Nairobi on 5 April 2016. 16.Upon deployment to Nairobi, the commandment at Kiganjo ceased to exercise supervisory authority over him. This was transferred to the chief accountant of the Kenya Police Service. 17.The allegation by the 1st respondent that a notice to show cause dated 5 July 2016 was issued is not correct. Such a letter was not received. It was served through the commandant, Kiganjo, who had since been moved to Nairobi. The deployment had been accepted. It is not possible that the respondents issued such a notice to the wrong address. The alleged desertion is not correct. The data capture sheet indicates the postal address at P.O. Box 234-502200, Bungoma. The notice was sent to P.O. Box 801, Bungoma. The given address was not the one applicable in 2016 or 2019. The new address was issued on 20 February 2020 when the petitioner relocated back to his rural home out of desperation. 18.The petitioner avers that the respondent treated him unfairly, violated his constitutional rights, and the orders sought should be issued. 19.On the petition, the petitioner submitted that the National Police Service Commission, the 1st respondent, had no jurisdiction to discipline a civilian upon transfer from the Public Service Commission (PSC). The petitioner was a civil servant and not a disciplined officer. As an employee of PSC, the 1st respondent did not have the mandate to discipline him or dismiss him from the service. Such a mandate is conferred upon the PSC under Article 234 of the Constitution. In Otoch v Muthaura & another [2022] KEELRC, the court held that where disciplinary authority is vested in a specific body. Proceedings initiated by an unauthorised officer or body are illegal. 20.Under article 47 of the constitution. The petitioner had the right to fair administrative action before his dismissal from service. Upon the stoppage of salary in May 2016, the petitioner tried to find out why without success. He fell into depression and was forced to move back to his rural place in Bungoma. In Wycliff Mangoli Wekulo v Teacher Service Commission [2015] KEELRC, the court held that where a public officer's salary is stopped without any disciplinary process and without being told why. That constitutes a continuing injury and violates the right to fair administrative action. 21.There was no notice to show cause served. The addresses used do not apply to the petitioner; thus, the procedures for such notice do not apply. In John Mwashi Ahnji v Mshamba Housing Co-operative Society [2021] KEELRC, the court held that an employer must prepare and issue a notice to show cause, and serve the employee with a copy of it in its records. Mere assertion that the notice was served is not sufficient. An allegation that the employee has deserted duty without proof cannot suffice. 22.The petitioner submitted that the respondents had violated his rights and that the orders sought should be issued with costs. 23.The 1st respondent submitted that the dismissal from service was lawful and did not violate constitutional rights. Through a notice to show cause dated 5 July 2016, the petitioner was invited to account for his absence. He was further subjected to disciplinary proceedings, and a decision to dismiss him was sent through his postal address on 8 August 2016. He filed his appeal on 30 March 2021, which was disallowed. 24.In Judicial Service Commission v Mbalu Mutava & another [2015] eKLR, the court held that procedural fairness requires that an opportunity to be heard is accorded. In this case, the petitioner was accorded the right to a hearing. 25.The 1st respondent, as a constitutional commission, is allowed to discipline its officers. Section 44(4) of the Employment Act allows summary dismissal upon abandoning duty. In Freight in Time Ltd v Rosebell Wambui Munene [2018] eKLR, the court held that where the employee absconds duty, he is in breach of a fundamental condition of the employment relationship. This justifies summary dismissal. 26.The petitioner has not demonstrated that the 1st respondent violated his right, and the petition should be dismissed with costs. Determination 27.The petitioner filed a petition alleging that his constitutional rights were violated. 28.Only the 1st respondent filed a Replying Affidavit and written submissions. 29.The petitioner was last on the shop floor on 5 April 2016, when he alleges that the head accountant directed him to go home and wait for communication regarding his office and duties. 30.The petition also admits that his letter of deployment from the Police Training College, Kiganjo, directed him to report to the Kenya Police Headquarters in Nairobi on 30 March 2016. He, however, did not report, and he filed his sick sheet with his letter of deployment.The sick leave was not approved. 31.The late reporting to the Kenya Police headquarters was not formalised with approval. Hence, the advice to remain at home until office space and duties were allocated was merely verbal and an allegation by the petitioner. 32.As an accountant, the petitioner knew that formal communication in government structures is the order of the day. Verbal communication cannot be relied upon to absolve oneself from duty. The essence of written communication from his deployment form Police Training College, Kiganjo, to the Kenya Police headquarters in Nairobi was to have a paper trail. Each officer in the public service is deployed through written communication and moved or transferred through formal communication. 33.In employment, particularly in government institutions, verbal communication is abhorred. 34.Absence from duty without written approval or authorisation from the employer, whether the Kenya Police or the PSC, constitutes a fundamental breach of the employment contract. Such is subject to summary dismissal. See H Young Company (EA) Limited v Kenya Building, Construction, Timber & Furniture Industries Employees Union [2026] KECA 1020 (KLR) and Judicial Service Commission v Wasamu [2026] KECA 915 (KLR). The courts have emphasised that, in a summary dismissal, the employee must be found to have committed gross misconduct and to be in breach of a fundamental provision of the employment contract. 35.To secure the employee’s rights, notice must be issued so the employee can attend and defend himself. In this case, the notice to show cause dated 5 July 2016 was served through the commander of the Police Training College, Kiganjo. The petitioner had since left such deployment to the Kenya Police headquarters, where he reported on 5 April 2016, albeit later than expected. 36.The petitioner could not reasonably be expected to respond to such notice. His address had since changed. 37.The alleged disciplinary hearing was conducted following a notice to show cause that was not properly issued. It did not reach the petitioner. He did not know such a notice. 38.The resulting decision to terminate the petitioner’s employment, as evidenced by 39.the notice dated 8 August 2016, was null and void. It could not meet the substantive and procedural justice thresholds stipulated in sections 41, 44, and 45 of the Employment Act.However, justice cut both ways. 40.Having been on the shop floor on 5 April 2016, the salary was stopped in July 2016. The petitioner did nothing to secure his employment. he sat on his rights. 41.The assertion that the petitioner fell into depression, moved to the village, and was unable to return to his employer to address the non-payment of his salary should have been regularised under section 89 of the Employment Act. As much as the court sympathises with the petitioner, filing a petition cannot secure him from the mandatory requirements of section 89 of the Employment Act. This is aptly captured in Juma & 5 others v Mada Holdings t/a Baobab Sea Lodge Kilifi Limited [2025] KECA 817 (KLR), where the court held that section 89 of the Employment Act is couched in mandatory terms. Any employment claim must be filed within 3 years from the date the cause of action accrued. Filing a petition instead of a memorandum of claim cannot take time back. 42.In Beatrice Kahai Adagala v The Postal Corporation of Kenya [2015] eKLR, the court held that:Much as we sympathize with the appellant if that is true, we cannot help her as the law ties our hands. Section 90 of the Employment Act 2007, which we have quoted verbatim hereinabove, is mandatory in terms. A claim based on a contract of employment must be filed within three 3 years. As the court stated in Divecon Limited v Samani [1995- 1998] 1 EA p. 48 … the limitation period is never extended in matters based on contract. 43.This position is reiterated in Kenya Railways Corporation v Ododa & 216 others [2024] KECA 1620 (KLR). Immediately, the petitioner found himself without a salary, and he was sent without any written communication; diligence demanded that he should act on such an eventuality. Since 5 April 2016, he filed this petition in 2025 after 9 years. 44.In any event, even where the petitioner is to find merit, which I do not think is the case, under sections 10(6) and 74 of the Employment Act, an employer is allowed to keep work records for 5 years only. After such a period, records may be destroyed or not available due to constant changes in officers and offices. The time period allocated under section 89 of the Employment Act is therefore meant to insulate the employee, where the cause of action is still fresh, and the employer, who should keep work records and produce them in court once suit is filed. 45.Waiting 9 years to file a petition instead of a Memorandum of Claim is an abuse of the court process. 46.The petition is without merit and is hereby dismissed. The petitioner shall meet the costs due to the 1st respondent. The other respondents did not attend; thus, no costs are due. DELIVERED VIRTUALLY THIS 25TH JUNE 2026.M. MBARŨJUDGEIn the presence of:Court Assistants: Nelson Kemboi and Catherine Makau……………………………………………… and………………….…………………………...