https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1611

Lichina v National Police Commission & another (Cause E017 of 2024) [2026] KEELRC 1611 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1611 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Cause E017 of 2024 DN Nderitu, J June 4, 2026 Between Kevin Asidagah Lichina Claimant and The National Police Commission 1st Respondent Office of the Inspector General 2nd Respondent Judgment I. Introduction 1.Through Reece Mwani & Company Advocates, the Claimant commenced this cause by way of a statement of claim dated 30th April 2024 seeking for the following reliefs –a.A declaration that the claimant’s employment was unlawfully and wrongfully terminated by the respondent in violation of Articles 28,41(1), 47, 48 and 50(1) of the Constitution of Kenya, 2010, as well as Section 45 of the Employment Act, No. 11 of 2007, Laws of Kenya.b.Reinstatement of the claimant to the employment and to the rank that he could have been had the respondents not unfairly and illegally terminated the claimant’s employment.c.An order that the claimant be paid monthly salary of Kshs 23,430/= from January 2022 until his reinstatement to his job.d.An award of damages for breach of contract and unlawful and wrongful termination of employment as hereunder –i.Damages for unlawful termination(12 months’ salary) …Kshs 281,160/=ii.One month’s salary in lieu of notice…..Kshs23,430/=iii.Costs of this suit and interest on (c ) above at court rates until payment in full.iv.General, exemplary and aggravated damages to be quantified.v.Any other relief that the court may deem fit to grant. 2.As it is the procedure, the statement of claim was accompanied with a verifying affidavit sworn by the claimant, a list of witnesses, the claimant’s written statement, a list of documents and copies of the listed documents attached. 3.The 1st respondent entered appearance and filed a reply to the statement of claim dated 2nd December 2024. The reply was accompanied with a list of documents and copies of the listed documents attached. The 2nd respondent did not enter appearance. 4.The claimant’s case came up in court for hearing on 11th February 2025 when the claimant (CW1) testified and closed his case. On the same day, the defence closed its case without calling witnesses. 5.Through a ruling dated 22nd September 2025 following the 1st Respondent’s application dated 5th March 2025, the case was reopened for the hearing of the 1st Respondent’s witnesses, Inspectors Maurin Adhiambo and Januaris Mbithi, whose written statements were both dated 26th February 2025. Despite the leave granted, the 1st respondent’s witnesses did present themselves in court to testify. 6.Counsel for both parties addressed and summed up their respective client’s case by way of written submissions. Counsel for the Claimant, Mr Mukhabani, filed his submissions dated 28th February 2025 while counsel for the 1st Respondent, Ms Kasaiyian, filed her submissions dated 15th January 2026. II. The Claimant’s Case 7.The Claimant’s case is expressed in the statement of claim, his witness statement, the documents filed, his oral testimony in court, and the written submissions by his counsel. 8.In the statement of claim it is pleaded that the Claimant successfully undertook a Police Basic Training Course at the Kenya Police Service General Service Training School from 19th May 2017 to 29th March 2018, after which he was employed by the Respondents as a Police Constable under the General Service Unit (GSU) and signed Service Number 1xxxx2. He earned a basic monthly salary of KShs23,430 plus allowances. His employment was permanent and pensionable and he was expected expected to retire on 12th May 2055 upon attaining the mandatory age of retirement. 9.The Claimant avers that in December 2021, the Respondents verbally terminated his employment without any justifiable reason and without according him a fair hearing as required by law. He states that he was not issued with a letter of termination or formal communication regarding the termination. 10.The Claimant further contends that on several occasions he reported to the Respondents’ Headquarters at Ruaraka, Nairobi County, but he was always sent away and verbally informed to wait until he was recalled back to duty. 11.He states that the Respondents stopped paying his salary in January 2022 but after making several visits to the Respondents’ offices, the salary was reinstated for the period from May 2022 until February 2023 after which the Respondents again stopped the payments. The Claimant states that even during the period when his salary was reinstated he was neither allowed to resume work nor was he assigned any duties. 12.According to the Claimant, the Respondents’ actions of failing to pay his salary and failing to assign him duties amounted to an implied termination of his employment. 13.The Claimant asserts that the termination was unlawful and unfair and contrary to Sections 43 and 45 of the Employment Act (the Act), that require an employer to prove valid reasons for termination and to apply fair procedure. He contends that he was not accorded a fair hearing and thereby the respondents violated his constitutional rights under Articles 28, 41(c), 47, 48, & 50 of the Constitution. 14.The claimant pleads that at all material times he performed his duties diligently and faithfully and that the Respondents’ actions have occasioned him substantial loss and prejudice.He further states that the termination has severely affected his career and livelihood, given the specialized nature of his training at the police college. 15.In his testimony in court, the Claimant reiterated the foregoing contents of the pleadings and relied on his written statement dated 30th April 2024. He produced the documents in his list of documents of even date as exhibits 1 to 4. 16.The claimant testified that while the a letter dated 18th January 2019 indicated that he had deserted duty, he was actually on duty in Pokot. He stated that on the one occasion he was alleged to have deserted, he had off-duty permission granted by CPL Maina and was only late to return to work. He stated that on 4th March 2022 he was on duty and he could not have received the salary of January 2023 had he been dismissed earlier. 17.In cross-examination, the Claimant conceded that from 13th November 2021 to 4th March 2022 he was absent from work without permission. He admitted that upon reporting back to duty on 4th March 2022 he was issued with a show-cause letter and in response thereto he admitted absenting himself from work without leave. He asserted that he was not notified of the orderly room proceedings of 9th March 2022 although he was in the parade on that date. He stated that from 4th March 2022 he was not allocated any duties but he reported for duty until he was dismissed. He stated that he was not served with the letter of dismissal dated 28th September 2023. 18.In re-examination, the Claimant stated that from 4th March 2022 he was at GSU Headquarters, Ruaraka, Nairobi County. III. 1ST RESPONDENT’S CASE 19.The 1st respondent’s case is expressed in the reply to the statement of claim. The 1st respondent denied all the material allegations and maintained that the Claimant was not unlawfully terminated but that he actually deserted duty. 20.It is the 1st Respondent’s case that the Claimant absented himself from duty without leave from 14th November 2021 and was consequently declared a deserter on 23rd November 2021 pursuant to Section 94(1) of the National Police Service Act. The 1st Respondent states that the Claimant later reported back to GSU Headquarters on 4th March 2022 after being absent for 111 days, a period equivalent to approximately three months and three weeks. 21.The 1st Respondent avers that upon his return the Claimant was informed that orderly room proceedings were to be conducted to address the disciplinary offence of absence without leave. However, the Claimant allegedly failed to attend the disciplinary proceedings scheduled for 9th March 2022 and again absented himself from duty until 17th March 2022. 22.According to the 1st Respondent, the Claimant was issued with two Notices to show-cause dated 9th March 2022 and 17th March 2022, respectively which he acknowledged receipt by signing and to which he gave written responses. The 1st Respondent further states that the Claimant subsequently attended disciplinary proceedings held on 21st March 2022 whereby he pleaded guilty to the charge of absence without leave alleging that he had been unwell but failed to produce medical evidence in support thereto. 23.The 1st Respondent asserts that the disciplinary committee found the Claimant culpable of the disciplinary offence and dismissed him from service in accordance with the National Police Service Act, the National Police Service Commission Disciplinary Regulations and, the Service Standing Orders. It is further stated that the claimant was informed of his right of appeal but did not appeal the dismissal. 24.The 1st respondent also avers that the Claimant had previously committed several disciplinary infractions including discharge of a firearm without lawful excuse, desertion of duty and, absence without leave for which he had been subjected to disciplinary sanctions. 25.Further, the 1st Respondent contends that the Act does not apply to members of the National Police Service pursuant to Section 3(2) of the Act, and that matters relating to discipline and dismissal of police officers are governed by the National Police Service Act, the National Police Service Commission Act and, the Service Standing Orders. 26.In the circumstances, the 1st Respondent maintained that the Claimant’s dismissal was lawful both in substance and procedure and conducted in accordance with the applicable legal framework and, therefore, urges the Court to dismiss the cause with costs. 27.The 1st Respondent, however, did not call any witnesses to substantiate and support the above statements. IV. Submissions 28.Counsel for the Claimant submitted on three issues – Whether the claimant was unfairly terminated; Whether the claimant is entitled to the reliefs sought; and, Who bears costs of the claim. 29.On the first issue, it is submitted that the Claimant was lawfully employed by the Respondents as a Police Constable under the General Service Unit (GSU) after successfully completing police training between 19th May 2017 and 29th March 2018. His employment was permanent and pensionable and he earned a basic monthly salary of Kshs23,430 plus allowances. 30.It is argued that in December 2021 the Respondents verbally terminated the claimant without justifiable cause and without following the mandatory procedure provided for in the law. It is submitted that the Claimant was neither issued with a show-cause letter, invited to a disciplinary hearing or, provided with written reasons for termination. 31.It is further submitted that despite reporting several times to the Respondents’ headquarters at Ruaraka, the Claimant was always instructed to wait until he was called back to duty. It is stated that the Respondents stopped paying the Claimant’s salary in January 2022 but later reinstated payment between May 2022 and February 2023 only for them to again stop payment without assigning him duties. According to the Claimant this conduct amounted to implied termination of his employment. 32.Citing Janet Nyandiko v Kenya Commercial Bank Limited (2017) eKLR, it is submitted that the Respondents violated the Claimant’s constitutional rights under Articles 28, 41, 47, 48 & 50 of the Constitution as well as Sections 41, 43 & 45 of the Act, that require employers to provide valid reasons for termination and follow fair procedure before such termination. 33.It is further submitted that the Respondents failed to call any witnesses to rebut the claimant’s testimony in court rendering the evidence by the Claimant uncontroverted. To buttress this assertion, counsel relied on the decision in Lourdes Nganjo Juma v Kenya Airways Ltd [2012] eKLR. 34.The Claimant’s counsel therefore urges the Court to find that his termination was unlawful and unfair and to grant all the reliefs sought including, reinstatement, compensation for unfair termination, salary arrears, notice pay and, costs of the suit. 35.On the other hand, counsel for the 1st respondent submitted on two issues – Whether the claimant was unlawfully and wrongfully terminated from the National Police Service; and, Whether the applicant is entitled to the reliefs sought herein. 36.On the first issue, it is submitted that the Claimant was not unlawfully terminated but rather he deserted duty, a serious offence within the National Police Service. 37.The 1st Respondent’s counsel cited Section 94 of the National Police Service Act to the effect that a police officer who absents himself from duty without leave or lawful cause for a period exceeding ten days is deemed to have deserted the service, an offence punishable by summary dismissal or imprisonment. 38.The 1st Respondent further refers to the National Police Service Standing Orders provide that a police officer who deserts duty for a period exceeding thirty days may be struck off. 39.It is submitted that the Claimant admitted during the hearing that he was absent from duty for 111 days which amounted to desertion as was held in Omutere v National Police Service Commission & 2 Others (2025) KEELRC 3666 (KLR). The 1st Respondent’s counsel argues that such conduct demonstrates a serious breach of discipline that is incompatible with service in a disciplined force in this case the National Police Service. 40.On the second issue, Counsel relied Ahmad & Another v Kadhi, Mombasa & Others (2021) KEHC 133 (KLR) to submit that the claimant’s attempt to seek reinstatement after deserting duty amounts to an abuse of the court process. 41.Counsel, therefore, submitted that the Claimant’s absence from duty justified administrative and disciplinary action against him and urges the Court to find that the Claimant was responsible for his removal from service through desertion. V. Issues for Determination 42.The court has carefully and dutifully gone through the pleadings filed, the documentary and oral evidence tendered by the claimant, and the written submissions by Counsel for both sides. The following issues commend themselves to the court for determination –a.Whether the claimant was unlawfully and wrongfully terminated.b.If (a) above is in the affirmative, whether the claimant entitled to reliefs sought, and,c.What is the appropriate order on the costs? VI. Dismissal 43.What constitutes valid reason(s) for terminating an employee and the procedure to be followed in terminating an employee are provided for under Sections 41 & 43 of the Act. Section 45(2) of the Act provides as follows –A termination of employment by an employer is unfair if the employer fails to prove –a.That the reason for termination is valid;b.That the reason for the termination is fair reason –i.Related to the employees conduct, capacity or compatibility; orii.Based on the operation requirements of the employer; andiii.That the employment was terminated in accordance with fair procedure. 44.Going by the evidence availed there is no dispute that the Claimant was an employee of the Respondents. The evidence presented by the Claimant is that he was employed as a Police Constable under the General Service Unit (GSU) and his terms of employment were permanent and pensionable. 45.It is the Claimant’s case that sometimes in December 2021, the Respondents verbally terminated his employment without any justifiable reason and without according him a fair hearing. He further testified that despite reporting several times to the Respondents’ headquarters at Ruaraka, Nairobi County, he was repeatedly instructed to wait until he was called back to duty. He stated that the Respondents stopped paying his salary in January 2022 but reinstated the same between May 2022 and February 2023 thereafter stopped paying him completely and stopped assigning him duties. According to the Claimant, the foregoing amounted to or implied termination of his employment. 46.It is the Claimant’s case that the Respondents violated his constitutional rights under Articles 28, 41, 47, 48 & 50 of the Constitution of Kenya and his statutory rights under Sections 43 and 45 of the Act that require an employer to prove valid reasons for termination and to follow fair procedure. 47.On the other hand, it is the 1st Respondent’s case that the Claimant was not terminated, but rather deserted duty. It relied on Section 94 of the National Police Service Act in asserting the Claimant deserted the service. It was submitted by counsel that the Claimant admitted during the hearing that he was absent from duty for 111 days which constituted desertion and warranted the claimant to be struck off under the National Police Service Standing Orders. It is the 1st Respondent’s case that the claimant’s absence from duty amounted to serious misconduct justifying dismissal. 48.The Court has considered the evidence oral and documentary tendered by the Claimant and the written submissions by the respective counsel for the parties. It is the law that the burden of proving unfair termination rests upon the employee under Section 47(5) of the Act, while the employer bears the burden of justifying the grounds for termination. There are many a decision on what amounts to unfair termination or dismissal – See for example, Mary Chemwono V Kenya Pipeline Company Limited (2017) eKLR, Loice Otieno V Kenya Commercial Bank Limited (2013) eKLR, and Walter Ogal Anuro V Teachers Service Commission (2012) eKLR. 49.While the 1st Respondent alleged that the Claimant deserted duty, the Court notes that no documentary evidence was produced to demonstrate that disciplinary proceedings were instituted against the Claimant for the alleged desertion. Further, no evidence was availed showing that the Claimant was formally dismissed or struck off the service in accordance with the law. 50.However, while the 1st Respondent did not call any witnesses to substantiate the allegations of desertion, the claimant conceded during cross-examination that indeed between 13th November 2021 and 4th March 2022 he was absent from work without permission. He admitted that on reporting back on 4th March 2022 he was issued with a show-cause letter under and in response thereto he admitted that he had absented himself from work without leave: Absenteeism or desertion from work without permission is a ground for summary dismissal. However, that admission did not absolve the respondents from ensuring that the Claimant was procedurally invited to answer to the allegations against him in due process. 51.The Claimant stated that he was not aware of orderly proceedings held on 9th March 2022. He stated that he was not served with the letter of termination 28th September 2023. The Claimant’s evidence that he continued to reporting to the Respondent’s (GSU) Headquarters but was instructed to await further communication remains largely uncontroverted. 52.It is also important to note that the Respondents continued paying the claimant’s salary for a lengthy period after the alleged desertion until February 2023 when they stopped paying until the alleged termination on 28th September 2023. The payment of salary repudiated the allegations by the 1st Respondent that he had deserted duty. There was no basis for payment of the salary if indeed the Claimant had deserted duty as alleged. 53.In terms of the procedure adopted by the Respondents, the court finds and holds that the Claimant was denied a reasonable and fair opportunity to be heard. 54.While a disciplinary hearing is not expected to meet the procedural standards of a court trial, as the courts are subject to strict rules of evidence and procedure, rules of natural justice apply in disciplinary hearings. Generally, these rules are that – no one may be condemned unheard; an employee has a right to all information and particulars of charges before the hearing; and, an employee has a right to test the evidence again him/her by way of cross-examination. An employer has to establish a prima facie case against the employee for the hearing to meet the minimum threshold of fair hearing as envisaged under Articles 47 & 50 of the Constitution and the various provisions of the Fair Administrative Action Act. 55.The court is of the considered view and holds that the Claimant was not afforded and accorded a fair and reasonable opportunity to present his defence and he was thus not properly heard within the meaning and context of the provisions of the law and more so Sections 41, 43, 44, & 45 of the Act. 56.In the circumstances, and in view of the foregoing, the court finds and holds that the Claimant was not denied procedural fairness before the dismissal. 57.As noted above, in terms of substance, the Claimant admitted to a lengthy desertion of duty of 111 days. That was a good ground for dismissal under the National Police Service Act and the National Police Service Orders. VII. Reliefs 58.Having found and held that dismissal of the Claimant by the Respondents was wrongful, unfair, and unlawful, only for lack of procedural fairness but not in substance, the court shall now consider each of the reliefs sought as set out in the introductory part of this judgment. 59.Prayer (a) is for a declaration that the termination of the Claimant’s employment was unlawful and wrongful. This has been decided in the foregoing paragraphs of this judgment based only on the lack of proper procedural steps. 60.Prayer (b) is for reinstatement of the Claimant to the National Police Service. Section 12(3)(vii) of the Employment and Labour Relations Court Act provides that an order for reinstatement of an employee can only be made within three years of dismissal. The Claimant’s case is that he was verbally dismissed in December 2021. However, he continued to receive his salary until February 2023 when the Respondents stopped paying the same. The Claimant’s own admission is that he was not given any duties to perform by the Respondents as from 4th March 2022. 61.From December 2021 three years lapsed sometimes in 2025. Moreover, reinstatement is a discretionary remedy that may only be granted in exceptional circumstances. Considering the nature of the employment within disciplined service and the breakdown of the employment relationship between the parties, the Court finds that reinstatement is not an appropriate remedy in the circumstances of this cause even though three years have not lapsed between the date of dismissal and the date of this judgment. The order of dismissal was issued on 28th September 2023. But still the court finds and holds that this is not an appropriate case for the court to order reinstatement in view of the gross misconduct on the part of the Claimant who admittedly deserted duty for over 111 days without a justified reason. 62.Prayer (c) is for monthly salary of Kshs 23,430/= from January 2022 until his reinstatement. The court has found that reinstatement is not available to the Claimant. The claimant pleaded that the Respondents had stopped paying his salary from January 2022 but, after several visits to the Respondents’ offices, the same was reinstated in May 2022 until it was finally stopped in February 2023. The Claimant pleaded further that the salary was reinstated despite his not reporting to work or actively discharging his duties during that period. 63.By dint of Section 17 of the Act, wages or salary are payable to an employee in respect of work done by the employee in pursuance of a contract of service. There is no contemplation of an employee being paid a salary for work not done. Therefore, it follows that this claim must fail. 64.Prayer (d) (i) is for compensation for unlawful termination. The Claimant pleaded for the maximum compensation equivalent to 12 months’ gross salary of Kshs281,160/=. Section 49(4) of the Act provides for some of the factors that this court ought to consider in determining the appropriate award in compensation for unfair and unlawful dismissal or termination. The Claimant testified that he was absent from duty from 13th November 2021 to 4th March 2022. While the Respondents may have had a justifiable reason to dismiss the Claimant, he was not accorded a fair hearing to defend himself. The Claimant argues that he may not get an alternative occupation by nature of his training as a police officer. 65.Compensation is essentially not aimed at punishing an employer but it is intended to compensate an employee for the loss of salary or earnings bar the dismissal or termination. The court takes the view that this is not an appropriate case for the award of the maximum 12 months’ gross salary in compensation in that the Claimant substantially contributed to his dismissal. The court considers compensation equivalent to three months’ gross salary to be fair compensation in the entire circumstances of this cause. The same is calculated at Kshs23,430/= (the last salary) *3 = Kshs70,290/=. This award is subject to statutory deductions. 66.Prayer (d) (ii) is for one-month salary in lieu of notice. The claimant was entitled to one month’s salary in lieu of notice pursuant to Section 35 of the Act amounting to Kshs23,430/= as per the last adduced payslip for January 2023. The claimant is hence awarded Kshs23,430/= under this head. 67.Prayer (d) (iv) is for General, exemplary, and aggravated damages to be quantified. The Court in Barclays Bank of Kenya Limited v Mema (2021)KEHC 333 (KLR) held that:-‘Punitive damages also known as exemplary damages are awarded in two instances. First, where the Government action or conduct complained of is oppressive, arbitrary or unconstitutional. Second, where the defendant has calculated that its conduct will result in a profit for himself and may well exceed the compensation payable to the claimant.’ 68.The Claimant did not adduce evidence of oppressive action against him in the dismissal. The Claimant caused his own dismissal and this confines compensation awardable to the claimant to Section 49 of the Act. The awarded amount above is by far more than the Claimant deserves as he was the author of his own misfortune. VIII. Costs 69.The claimant is awarded costs of the cause. IX. Disposal/orders 70.The court issues the following orders –a.A declaration be and is hereby issued that the dismissal of the Claimant by the Respondents was wrongful, unfair, and unlawful for lack of procedural fairness.b.The Claimant is awarded a total of Kshs93,720/= together with interest thereon from the date of this judgment less statutory deductions. The said sum is made up as follows –i.Compensation for wrongful and unlawful dismissal…………………Kshs70,290/=ii.One month’s gross salary in lieu of notice………………...Kshs23,430/=Total……...... Kshs.93,720/=c.Costs of the cause to the Claimant. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 4TH DAY OF JUNE 2026.………………………DAVID NDERITUJUDGE