https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1806

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **CONSTITUTIONAL PETITION NO. E001 OF 2025** **IN THE MATTER OF ARTICLES 2(1), 3(1), 10, 19, 21(1), 22(1) & (3), 23(1) & (3), 25(a), (c), 27, 28, 29(d) AND (f), 35, 41, 47, 50(1), 165, 258 & 259 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF ALLEGED CONTARVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS ARTICLES 25, 27, 28, 29, 35, 41(1), 47(1&2) AND 50 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF RULES 4, 10, 11, 13 AND 20 OF THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) HIGH COURT PRACTICE AND PROCEDURE RULES 2013 AND IN THE MATTER OF SECTIONS 46(1), 89(3 &4) OF THE NATIONAL POLICE SERVICE ACT NO. 11A OF 2011 (SUBSIDIARY LEGISLATIONS) AND IN THE MATTER OF SECTIONS 3 AND 4 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, 2015** **BETWEEN** **JACKSON OLENASO LENKIRASI…………....………………PETITIONER** **VERSUS** **NATIONAL POLICE SERVICE COMMISSION…….…..1ST RESPONDENT** **INSPECTOR GENERAL OF POLICE……………..……...2ND RESPONDENT** **HON. ATTORNEY GENERAL…………………….………3RD RESPONDENT** **JUDGMENT** 1. The Petitioner instituted these proceedings through a Petition dated 7th January 2025, alleging that the Respondents violated his constitutional rights and fundamental freedoms by suspending and subsequently dismissing him from the National Police Service. The Petition is supported by the Affidavit sworn on 7th January 2025 by the Petitioner, ***Jackson Olenaso Lenkirasi***. 2. The Petitioner states that he was enlisted into the Police Service on 22nd December 1986. He avers that on 30th December 2000, while stationed at Ileret Police Post in Marsabit, he was granted a short leave during which he travelled to Samburu County carrying a G3 rifle loaded with 60 rounds of ammunition. 3. According to the Petitioner, the area was prone to bandit attacks and lacked reliable public transport. He contends that he obtained permission to carry the firearm for his personal security due to the prevailing insecurity, frequent banditry incidents, and killings along the route to his home. 4. The Petitioner further avers that upon arriving home on 31st December 2000, he retired for the night after placing the firearm beneath his bed. However, when he woke up at approximately 5:00 a.m. the following morning, he discovered that both his wife and children were missing from the house, together with the firearm. He states that he immediately reported the incident at Morijo Police Post and subsequently at Maralal Police Station. 5. The Petitioner states that upon reporting at Maralal Police Station, he learnt that his wife had already reported the matter and surrendered the G3 rifle. He further avers that his wife had accused him of abducting, shooting, and killing their two-year-old son, allegations which led to his arrest and subsequent prosecution for the offence of abducting with intent to murder. 6. The Petitioner avers that while still in custody, he received a letter dated 12th January 2001 informing him that orderly room proceedings had been conducted, during which he was alleged to have pleaded guilty, and that he had consequently been dismissed from the Police Service with effect from 11th January 2001. He contends that he lodged an appeal against the dismissal, but the same was never responded to. 7. According to the Petitioner, he was released on bail on 13th February 2001 and thereafter attended court proceedings until 10th December 2003, when he was acquitted of the criminal charges. 8. The Petitioner further avers that following his acquittal, he wrote several letters to the Respondents seeking reinstatement to the National Police Service and payment of his employment dues. He contends that none of the said correspondence elicited any response. 9. It is the Petitioner’s case that had the Respondents conducted proper investigations and afforded him an opportunity to present his defence before the orderly room proceedings, the outcome of the disciplinary process would have been different. 10. The Petitioner maintains that his dismissal was unlawful and unfair, asserting that he was neither notified of nor invited to participate in the orderly room proceedings. He further contends that he was not accorded an opportunity to be accompanied by a colleague or a representative of his choice during the disciplinary process. 11. It is against this background that the Petitioner seeks the following reliefs: 12. **A DECLARATORY ORDER that the actions of the Respondents in failing to give the Petitioner Notice of orderly room proceedings violated the Petitioner’s right under Article 47 of the Constitution of Kenya, 2010.** 13. **A DECLARATORY ORDER that the actions of the Respondent in failing to respond to the appeal by the Petitioner despite being requested by the Petitioner violated the Petitioner’s right under Article 35 of the Constitution of Kenya, 2010.** 14. **A DECLARATORY ORDER that the actions of the Respondents in failing to give the Petitioner a chance for a fair hearing before the orderly room proceedings by trying and finding him guilty in absentia and failing to give any justifiable reason to hear the appeal violated the Petitioner’s right under Article 47 of the Constitution of Kenya, 2010.** 15. **A DECLARATORY ORDER that the actions of the Respondents in failing to give the Petitioner a chance for a fair hearing before the orderly room proceedings by trying and finding him guilty, summarily dismissing him from employment before the outcome of the criminal proceedings violated the Petitioner’s right under Article 50(2) of the Constitution of Kenya, 2010.** 16. **A DECLARATORY ORDER that the actions of the Respondent contravened and/or violated the provisions of the Constitution under Articles 2, 3, 10, 19, 22(1) & (3), 23(1) & (3), 25(a), 27, 28, 29(d) and (f), and thus contravened and/or violated the rights and freedoms of the Petitioner under the Bill of Rights of the Constitution of Kenya 2010.** 17. **AN ORDER COMPELLING the Respondents to compute the salary and allowances unfairly withheld following his unfair dismissal from service for purposes of computation of compensation payable to the Petitioner.** 18. **AN ORDER FOR COMPENSATION against the Respondent for violating the Petitioner’s Constitutional rights and freedoms.** 19. **AN ORDER FOR COMPENSATION in the sum of Kenya Shillings Two Hundred and Sixty-Four Thousand (Kshs. 264,000/=) for the unfair and unlawful termination of the Petitioner’s contract of employment.** 20. **Cost of this suit and interest thereon.** 21. **Any other order that this Honourable deems fit and just in the circumstances.** 22. The Respondents opposed the Petition through a Replying Affidavit sworn on 11th August 2025 by **Silas Andiema**, who has identified himself as a Commissioner of Police. 23. Mr. Andiema avers that upon proceeding on leave, the Petitioner failed to surrender his firearm to the armoury as required and instead carried it to his rural home. He avers that while there, the Petitioner discharged six (6) rounds of ammunition and thereafter neglected the firearm, which was subsequently recovered by members of the public and handed over to Marsabit Police Station. 24. He further avers that as a result of the foregoing conduct, the Petitioner was charged with two (2) disciplinary offences before orderly room proceedings, found guilty, and consequently dismissed from the Police Service with effect from 11th January 2001. 25. According to Mr. Andiema, the disciplinary proceedings were conducted in accordance with Sections 64 and 65(e) of the repealed Police Act, the repealed Police Regulations, and Chapter 20 of the repealed Force Standing Orders. He adds that the National Police Service Commission (Discipline) Regulations, 2015, had not yet been enacted at the time the Petitioner underwent the orderly room proceedings. 26. Mr. Andiema further avers that the decision to dismiss the Petitioner was based on the evidence adduced during the disciplinary proceedings and was reached after considering the circumstances surrounding the offences, their gravity, the Petitioner’s length of service, and his previous record and conduct. 27. He maintains that the Petitioner did not lodge any appeal against the decision dismissing him from the Service. 28. Mr. Andiema further contends that the Petitioner’s dismissal arose solely from his disciplinary conviction and bore no connection to the criminal proceedings that had been instituted against him. 29. He deposes that Chapter 20 of the repealed Force Standing Orders and the disciplinary framework governing members of the Police Service clearly distinguished disciplinary proceedings from criminal proceedings, such that the two (2) processes operated independently of each other. 30. It is therefore his contention that the institution of criminal proceedings against the Petitioner did not preclude the predecessor of the 1st Respondent from commencing and concluding disciplinary proceedings against him. 31. Mr. Andiema further avers that the offences forming the subject of the criminal proceedings were distinct from those that formed the basis of the disciplinary proceedings and, consequently, the outcome of the criminal trial had no bearing on the outcome of the disciplinary process. 32. According to Mr. Andiema, he has been advised by counsel for the State that the framing of the present dispute as a constitutional petition is a deliberate attempt to circumvent the provisions of Section 3 of the Public Authorities Limitation Act. In his view, the claim is statute-barred, the cause of action having arisen in 2001, more than 24 years before the institution of these proceedings. 33. He further contends that the Petition is, in substance, an ordinary employment dispute arising from a contract of service and does not warrant treatment as a constitutional petition. 34. Mr. Andiema further avers that, under Section 108(2) of the repealed Constitution, the Commissioner of Police was the final appellate authority in disciplinary matters affecting officers of subordinate ranks prior to the establishment of the 2nd Respondent under the Constitution of Kenya, 2010. He therefore maintains that all applicable substantive and procedural legal requirements were complied with in the disciplinary action taken against the Petitioner and that the 2nd Respondent bears no responsibility for any alleged violation of the Petitioner’s constitutional rights. 35. In Mr. Andiema’s view, the remedies sought by the Petitioner are unsupported both in fact and in law, as the Petitioner was lawfully dismissed from the Service and is therefore not entitled to the salary arrears claimed for a period during which he rendered no service. 36. The Petition proceeded for hearing by way of viva voce evidence. In this regard, the Petitioner testified in support of his case on 9th February 2026. At the commencement of his testimony, he adopted his witness statement as his evidence in chief and produced the list and bundle of documents filed on his behalf as exhibits before the Court. 37. The Respondents, on their part, called **Silas Andiema** as RW1 on 13th April 2026. RW1 likewise adopted his witness statement as his evidence in chief and produced the documents filed on behalf of the Respondents as exhibits before the Court. 38. Upon the close of the oral hearing, the parties filed and exchanged written submissions. **Submissions** 1. The Petitioner submitted that he instructed a counsel who issued a demand letter on 11th March 2004 to that effect. It was his submission that he did not hear from his counsel, hence did not know whether a suit had been instituted or not. He further submitted that he became unwell as a result of torture while he was in detention and did not recover fully for about seven (7) years. 2. The Petitioner has further submitted that the delay in filing this Petition was not inordinate but as a result of sickness and frustration from his advocates, whose mistake he should not bear as he is an innocent litigant. 3. Citing the case of ***Joan Akinyi Kabasellah & 2 Others vs Attorney General Petition No. 41 of 2014,*** the Petitioner argued that courts will be reluctant to shut out a litigant on account of limitation of time unless there are obvious reasons to do so. 4. The Petitioner further submitted that the Respondents conducted orderly room proceedings in his absence. In his view, the proceedings were conducted contrary to ***Article 50(1) of the Constitution of Kenya 2010***. 5. The Petitioner further submitted that he was subjected to an administrative action that was not procedural, adding that the same was unfair since it was conducted in his absence. In the same vein, the Petitioner contended that he was not afforded an opportunity to respond to the allegations leveled against him. 6. According to him, the Respondents blatantly violated ***Articles 10, 27, 28, 41, 47, 48, and 50 of the Constitution of Kenya and Section 4 of the Fair Administrative Actions Act 2015*** since they relieved him of his duties without any sufficient reasons and without affording him a fair hearing. 7. The Petitioner further submitted that the Respondents violated his rights to a fair hearing and fair labour practices under ***Article 41(1) of the Constitution*** and that the fictitious reasons for the said dismissal as given by the Respondents were contrary to ***Article 47 on fair administrative action***. In support of this position, the Petitioner has cited the case of ***Maxwell Onduso v National Police Service & 3 others [2021] eKLR.*** 8. On the other hand, the Respondents submitted that the Petitioner was dismissed from employment on 12th January 2001, and he filed the instant Petition 24 years later in January 2025. It is the position of the Respondents that 24 years is inordinate, not excusable, and the Petitioner is guilty of laches. 9. It was further submitted by the Respondents that the repealed Force Standing Orders provided that upon sentence, a member of the force had a right to appeal to the Commissioner within seven (7) days. In this regard, the Respondents contended that the Petitioner’s personal file shows that he failed to appeal the dismissal sentence. 10. In the same breath, it was submitted by the Respondents that the Commissioner of Police was the appellate authority under the disciplinary framework existing at the time, and the Petitioner failed to invoke that mechanism within the prescribed time. To this end, the Respondents invited the Court to consider the case of ***William Odhiambo Ramogi & 3 others v Attorney General & 4 others (2020) eKLR.*** 11. The Respondents further posited that the Petitioner is circumventing the provisions of ***Section 3(2) of the Public Authorities Limitations Act*** by framing an ordinary employment dispute as a constitutional petition. 12. In further submission, the Respondents contended that the Petition has not been pleaded with precision since it fails to elaborate on the alleged provisions violated and acts and or omissions leading to the alleged violations of the Constitution. 13. Referencing the case of ***Samuel Kamau Macharia v Kenya Commercial Bank & 2 others (2012) KESC 8 KLR,*** the Respondents further submitted that the Petition is fundamentally misconceived as it seeks to invalidate proceedings undertaken in 2001 through reliance on constitutional and statutory provisions that were not in existence at the material time. 14. It was the Respondents' position that the impugned conduct occurred nearly a decade before the promulgation of the Constitution, 2010, as well as the statutes relied upon in this Petition. In this regard, the Respondents contended that the ***Fair Administrative Action Act (2015), the Employment Act (2007), and the National Police Service Act (2011)*** cannot apply retrospectively. **Analysis and Determination** 1. Having considered the pleadings, the evidence adduced by the parties, and their respective submissions, the Court has identified the following issues for determination: 2. ***Whether the Petition is statute-barred;*** 3. ***Subject to the determination in (a), whether the provisions of the Constitution of Kenya, 2010 are applicable to the circumstances of this case; and*** 4. ***Subject to the determination in (a) and (b) above, whether the Petitioner’s constitutional rights and fundamental freedoms were violated by the Respondents.*** **Statute-barred Petition?** 1. It is common ground that the Petitioner’s employment in the Police Force was terminated through a letter dated 12th January 2001. It is also apparent that the present Petition was subsequently instituted on 7th January 2025, approximately 24 years after the impugned dismissal. 2. In this regard, it is necessary to consider the provisions of ***Section 3(2) of the Public Authorities Limitation Act***, which is relevant and provides as follows: ***[3] (2) No proceedings founded on contract shall be brought against the Government or a local authority after the end of three years from the date on which the cause of action accrued.*** 1. The effect of the foregoing statutory provision is that a suit founded on contract against the Government cannot be maintained where it is instituted after the lapse of three (3) years from the date on which the cause of action accrued. 2. On the question of what amounts to a cause of action, the Court of Appeal in ***Attorney General & another v Andrew Maina Githinji & another [2016] eKLR,*** citing with approval ***Letang v Cooper [1964] 2 All ER 929 at 934***, stated as follows: ***“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”*** 1. In this regard, a cause of action ordinarily accrues at the time a party becomes entitled to institute proceedings, which in the present case would be the date the Petitioner was dismissed from the Police Force on 12th January 2001. Consequently, the Petitioner’s right to institute the present claim lapsed three (3) years thereafter. 2. In light of ***Section 3(2) of the Public Authorities Limitation Act,*** time began to run from 12th January 2001 and expired on 12th January 2004. Upon the expiry of the limitation period, the claim became statute-barred and no action founded on the employment contract could thereafter be maintained against the Respondents. 3. On this point, I am guided by and adopt the holding of the Court of Appeal in ***Attorney General & another v Andrew Maina Githinji (supra)*** as follows: ***“The respondents had a clear cause of action against the employer when they received their letters of dismissal on 2nd October, 2010. They had all the facts which had been placed before them in the disciplinary proceedings and they could have filed legal proceedings if they felt aggrieved by that dismissal, but they did not...having found that the cause of action arose on 2nd February, 2010 and that the claim was filed on 16th June, 2014 it follows by simple arithmetic that the limitation period of 3 years was surpassed by a long margin. The claim was barred as at 1st February, 2013, and I so hold."*** 1. Applying the reasoning in the foregoing precedent to the present case, it follows that by the time the Petition was filed on 7th January 2025, the claim against the Respondents had long become statute-barred, having been instituted well beyond the three-year limitation period from the date on which the cause of action accrued. 2. The fact that the Petitioner elected to institute the proceedings by way of a constitutional petition does not, in itself, cure or circumvent the defect of limitation. 3. Although it is generally accepted that constitutional petitions for enforcement of fundamental rights and freedoms are not strictly bound by limitation periods, this does not mean that such claims may be brought at any time, irrespective of the length of delay since the cause of action arose. 4. In addressing this issue, the Court of Appeal in ***Mitei v National Social Security Fund Board of Trustees [2022] KECA 974 (KLR)*** held as follows: ***“Even though there is no limitation period for bringing an action alleging violation of a party’s constitutional rights and freedoms, the court is entitled to consider whether the claim was lodged within a reasonable time.”*** 1. Similarly, the Court in ***James Kanyiita Nderitu v Attorney General & another [2019] eKLR*** held as follows: ***“Although there is no limitation period for filing proceedings to enforce fundamental rights and freedoms, the court in considering whether or not to grant relief under ... the Constitution, is entitled to consider whether there has been inordinate delay in lodging the claim. The Court is obliged to consider whether justice will be served by permitting a respondent, whether an individual or the State in any of it manifestations, should be vexed by an otherwise stale claim. Just as a petitioner is entitled to enforce its fundamental rights and freedoms, a respondent must have a reasonable expectation that such claims are prosecuted within a reasonable time.”*** 1. Applying the foregoing precedents to the present case, the Court finds that the delay in instituting the instant Petition was inordinate. 2. Indeed, in ***Mitei v National Social Security Fund Board of Trustees [2022] KECA 974 (KLR),*** the Court of Appeal upheld the trial court’s finding that a delay of seven (7) years was inordinate. 3. I further adopt the reasoning of the Court of Appeal in ***Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR,*** where the Court observed that delay is inimical to the right to a fair trial, which is guaranteed under Article 50 of the Constitution. The Court further held that allowing a party alleging a violation of constitutional rights to institute proceedings after an unexplained and inordinate delay would amount to an abuse of the court process and would run contrary to the constitutional imperative under Article 159, which requires that justice be administered without undue delay. 4. In view of the foregoing, the Court finds and holds that the Petitioner herein failed to institute the present claim within the applicable statutory timelines and that, in any event, the delay in filing the Petition was inordinate and unexplained. 5. The Petitioner is therefore guilty of laches, given that the delay in instituting these proceedings is both inordinate and unjustified. It is noteworthy that the Petitioner was aware of his dismissal from service almost immediately after at the time the decision was made on 12th January 2001. Therefore, I cannot help but question why the Petitioner waited for 24 years before asserting his alleged rights and seeking redress. Such a delay is clearly excessive, and it is reasonable to infer that the officers who were involved in the matter are no longer in service or may no longer be available. 6. The rationale for limitation periods is well established. As time passes, the reliability of evidence is compromised as witnesses may leave service, transfer, forget material facts, relocate, or, in some cases, pass away. These factors adversely affect the Court’s ability to fairly evaluate evidence and arrive at a just determination. 7. Against this backdrop, the Court finds that the Petitioner lost the opportunity to pursue his claim by failing to act timeously. This scenario aptly invokes the equitable maxim that equity aids the vigilant, not the indolent. 8. In the premises, I find and hold that the Petitioner’s claim against the Respondents is statute-barred, having been instituted approximately 24 years after the cause of action arose. Consequently, and following the holding in ***Thuranira Karauri v Agnes Ncheche [1997] eKLR*** to the effect that limitation goes to jurisdiction, this Court finds that it lacks jurisdiction to entertain the present suit. 9. In light of the foregoing finding, the second issue identified for determination is rendered moot and falls by the wayside. 10. In sum, the Court’s finding is that the Petition dated 7th January 2025, having been filed outside the applicable limitation period and thus being statute-barred, is not sustainable, and the appropriate order is for its striking out. 11. Each party shall bear its own costs. **DATED, SIGNED** and **DELIVERED** at **NYERI** this **26th** dayof **June 2026**. ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: No appearance for the Petitioner No appearance for the Respondents Ndati Court Assistant **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**