https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2419

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI CONSTITUTIONAL PETITION NO. E127 OF 2026 JUDICIAL REVIEW AND LABOUR RIGHTS DIVISION IN THE MATTER OF ARTICLES 2, 10, 19, 20, 22, 23, 24, 27, 32, 38, 41, 47 AND 258 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF RULES 20, 24 & 26 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS & FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013 AND IN THE MATTER OF THE EMPLOYMENT & LABOUR RELATIONS COURT ACT, 2011 AND IN THE MATTER OF SECTION 5 OF THE FAIR ADMINISTRATIVE ACTION ACT, LAWS OF KENYA BETWEEN WILFREY MAUTI NDOTO………………………………………….………………………………………PETITIONER -VERSUS- THE ADMINISTRATION POLICE SERVICE………………..….……………………….……1ST RESPONDENT THE COMMANDANT, SGB & VIP PROTECTION UNIT……………………..…...…2ND RESPONDENT THE INSPECTOR GENERAL, NATIONAL POLICE SERVICE……………………….3RD RESPONDENT THE HONOURABLE ATTORNEY GENERAL…..………..…...…………………………....4TH RESPONDENT CORAM Before Lady Justice Jemimah Keli C/A Otieno JUDGMENT 1. The Petitioner commenced this suit vide a Petition dated 22nd April 2026 seeking:- a) A declaration that the recall of the Petitioner, WILFREY MAUTI NDOTO, from the Border Police Training Campus is unlawful, unconstitutional, and procedurally unfair. b) An order of mandatory injunction compelling the Respondents to immediately facilitate the re-joining of the Petitioner to the Border Police Training Campus to complete the Corporal to Sergeant Course No. 1/2026, such action to be taken within 72 hours of the Court's order. c) A permanent injunction order restraining the Respondents, their agents, employees or servants from victimizing the Petitioner and/or in any other way interfering with the Petitioner's training and career progression based on the unfounded allegations regarding his rank or service history. d) Costs of this Petition be awarded to the Petitioner. e) Any other relief the Court deems fit to grant. 1. The Petition was filed alongside the Supporting Affidavit of the petitioner sworn on 22nd April 2026, with the bundle of documents in support of the Petition attached. 2. In response to the Petition, the Respondents filed a Replying Affidavit sworn by LAZARUS OPICHO on 11th June 2026. 3. To counter the response, the Petitioner filed a Supplementary Affidavit sworn on 15th June 2026. Hearing and evidence 1. The petition was canvassed by way of written submissions. The parties appeared before the court through counsel and highlighted their submissions on the 1st July 2026. The Petitioner’s case in summary 1. The Petitioner’s case is that he is an employee of the 1st Respondent and a serving Administration Police Officer deployed within the Security of Government Buildings & VIP Protection Unit. On 25th February 2026, was formally nominated via Ref. No. SGB/STDM/OO1/VOL.XVIII/89 to attend the Sergeant Course No. 1/2026. The nomination letter was duly signed by designated Officers of the Respondent, and explicitly stated that the course was designed for the Petitioner's "career progression". By the same letter, he was directed to report to the Border Police Training Campus by 27th February 2026. It is averred that the Petitioner complied with these lawful orders and was documented as being "ON COURSE" in the Duty Roster for the period 15th March 2026 to 21st March 2026. 2. The Petitioner’s grievance is that the 2nd Respondent recalled the Petitioner without a formal written notice and/or letter, from attending the Seargent’s course on the baseless and irrational allegation that he has not served sufficiently as a Corporal. He challenges this allegation on the premise that he was promoted to Corporal in 2021 and has served adequately as such as evidenced by the Unit’s Duty Roster. 3. After being recalled, the Petitioner states that he lodged a complaint with the Internal Affairs Unit - National Police Service vide a letter dated 31st March 2026, and has therefore exhausted internal dispute resolution avenues. The Internal Affairs Unit - National Police Service acknowledged and responded to the Petitioner’s complaint, but he is apprehensive that he will lose the career progression opportunity, and/or he will be accused of desertion and victimized, for attending a course that he was ordered to attend. 4. The Petitioner argues that the Respondent’s conduct of recalling him unjustifiably and without formal notice from training has violated his rights under Articles 10, 24, 27, 32, 38, 41, 47 and 258 of the Constitution. 5. On the issue of the Police Signals sent to the Border Post Training Campus at Kanyonyo, the Petitioner disputes the validity of service of the same as they do not bear his signature, initials or thumbprint in acknowledgement of receipt thereof. He states that the Signals were fabricated after the fact to support the Respondents’ case. The Petitioner also denies being untraceable as alleged by the Respondents and states that the Respondents were at all times aware of his location following his communications with the Internal Affairs Unit which confirmed that they engaged the Deputy Inspector General of the Administration Police Service. Respondents’ case in brief 1. The Respondents admit that the Petitioner was recruited into the Administration Police Service in 2015. Upon completion of his basic recruit training course, he was deployed as an Administration Police Constable and confirmed to permanent and pensionable employment in 2016. The Respondents aver that the Petitioner has remained in the rank of Administration Police Constable and that no formal promotion to the rank of Corporal has ever been effected, although he was recommended for promotion on merit in 2021 while attached to the Office of the Principal Secretary for the State Department for Infrastructure in the Ministry of Transport, Infrastructure, Housing and Urban Development. The Respondents point to the Petitioner's employment records, including his payslip, as indicating that he remains a Constable. 2. The Respondents draw a distinction between a recommendation for promotion, which is merely advisory and does not amount to promotion, appointment, conferment of rank, or alteration of terms of service, and a substantive promotion, which remains subject to evaluation and approval by the relevant organ of the National Police Service and to successful completion of the prescribed promotional courses, and which is governed by established statutory, administrative and institutional procedures. The Respondents emphasise that the Petitioner was not promoted to the rank of Corporal, as the consequential steps leading to his promotion by the relevant organs of the National Police Service had not been effected. 3. It is averred that the Petitioner was scheduled to undertake the appropriate promotional training from Constable to Corporal from 27th February 2026, but due to an inadvertent administrative error, the Petitioner was erroneously issued with a letter dated 25th February 2026 for the Corporal-to-Sergeant promotional course. He was subsequently released to attend the said course on 3rd March 2026. Upon discovery of the error on 9th March 2026, it is stated that corrective administrative action was taken in good faith and within a reasonable period, with a Police Signal dated 11th March 2026 being sent to the Border Police Training Campus (BPTC) at Kanyonyo recalling the Petitioner to Security of Government Buildings (SGB) to collect the correct promotional course letter and proceed with the proper training programme. The Respondents clarify that the recall was not disciplinary, punitive, discriminatory, malicious, or actuated by bad faith, but was solely intended to rectify an administrative mistake. 1. On receipt of the Signal, the Petitioner was released by the Commandant Border Police Training Campus Kanyonyo from the training and directed to report back to his parent Unit to collect the correct course documentation, but the Petitioner deliberately failed and/or refused to report despite lawful instruction and numerous follow-up communication. 2. The Respondents state that the Petitioner cannot rely on an admitted administrative error to claim a promotion that was never formally granted. Notably, there is no promotion letter, personnel record, payroll adjustment, deployment order, or Service record demonstrating that the Petitioner attained the rank of Corporal. The Respondents therefore deny that the decision to recall the Petitioner from the Sergeant’s Course was unlawful, irrational, and/or procedurally unfair, or that they have violated any of the Petitioner’s constitutional rights. It is averred that the Petitioner’s refusal to collect the Constable-to-Corporal promotional course letter and to comply with lawful instructions amounts to insubordination and disobedience of lawful orders. 3. Further, the Petition is opposed for failure to exhaust the existing internal dispute resolution mechanisms within the National Police Service. DETERMINATION 1. Following directions by the court that it would determine the Petition through written submissions, both parties complied. Issues for determination 1. The Petitioner distilled the following issues for determination in their submissions dated 16th June 2026: * 1. Whether the Petitioner has established a prima facie case with a probability of success. 2. Whether the unacknowledged, unverified electronic signals constitute lawful administrative action or valid service under Kenyan law. 3. Whether the sudden mid-course recall violates the Petitioner's Right to Fair Labour Practices (Article 41) and Fair Administrative Action (Article 47). 4. Whether the Petitioner will suffer irreparable injury if the interim conservatory orders are not granted. 2. Conversely, in their submissions dated 11th June 2026, the Respondents identified the following issues for determination:- * 1. Whether the petition is premature for failure to exhaust internal dispute resolution mechanisms. 2. Whether the applicant has met the threshold for grant of conservatory orders. 3. Whether the applicant was ever promoted to the rank of corporal. 4. Whether the recall of the applicant from the sergeant’s course was lawful, reasonable and procedurally fair. 3. The court noted that the parties had canvassed submissions on both the application and the petition. The court finds the issue for determination in the final disposal of the petition to be – * 1. Whether the petition is premature for failure to exhaust internal dispute resolution mechanisms. 2. Whether the recall of the applicant from the sergeant’s course was lawful, reasonable and procedurally fair. 3. Whether the petitioner is entitled to relief sought Whether the petition is premature for failure to exhaust internal dispute resolution mechanisms. 1. The respondent submitted that the Petition is fatally defective for offending the doctrine of exhaustion. The Applicant has not demonstrated that he exhausted the internal grievance and dispute resolution mechanisms available within the National Police Service before approaching this Honourable Court. It is a well-established principle of law that where Parliament or the Constitution has provided a specific procedure for the resolution of a dispute, such procedure must be exhausted before a party can seek judicial intervention. The doctrine of exhaustion was authoritatively stated by the Court of Appeal in Speaker of the National Assembly v Karume [1992] KLR 21 where the Court held that: "where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed" The same principle was reaffirmed by the Court of Appeal in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR where the Court emphasized that: "It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Court ought to be fora of last resort and not the first port of call the moment a storm brews...." The Applicant has neither pleaded nor demonstrated that he pursued the available internal mechanisms within the National Police Service, nor has he established the existence of any exceptional circumstances that would justify exemption from the doctrine of exhaustion. Having failed to comply with this mandatory procedural requirement, the applicant cannot provably invoke the jurisdiction of this court. Accordingly, the Petition and the accompanying Application are premature, misconceived, and incompetent for want of compliance with the doctrine of exhaustion, and on that basis alone, they ought to be dismissed with costs. 2. The petitioner did not submit on this issue. The respondent did not disclose to the court the said internal mechanisms which the petitioner ought to have exhausted. The court is not aware of the alternative mechanism. The court cannot make a finding on non-exhaustion. Whether the recall of the applicant from the sergeant’s course was lawful, reasonable and procedurally fair. 1. The petitioner submitted as follows: Whether the recall was a breach of Articles 41 & 47 of the Constitution and the Fair Administrative Action Act (2015) The provisions of the law under Article 47(1) of the Constitution mandates that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Further, the provisions of the law under Section 4 and 5 of the Fair Administrative Action Act, 2015, require that any decision-maker taking action that adversely affects a person’s rights must provide prior, adequate notice and a clear opportunity to make representations before the decision is implemented. That the sudden recall of an officer mid-way through a career course severely impacts their promotional track, professional reputation, and mental well-being. Doing so without giving the Applicant/Petitioner a formal notice to show cause, an opportunity to challenge the alleged "error" or a chance to present his case is a flagrant breach of the audi alteram partem such that the underlying requirement is to hear the other side principle. Further in Republic-vs-National Police Service Commission & Another ex parte Robert Patrick Anyangu (2014) eKLR, the High Court held that the disciplined forces are not exempt from the constitutional baseline of Fair Administrative Action. The court affirmed that administrative powers within the National Police Service must be exercised rationally, fairly, and free from whimsical or arbitrary shifts that disadvantage an officer's career progression. Furthermore, the Supreme Court of Kenya in Communications Commission of Kenya & 5 Others-vs-Royal Media Services Limited & 5 Others (2014) eKLR solidified the Doctrine of Legitimate Expectation. The Court held that a legitimate expectation arises when a public body creates a clear, unambiguous representation. By shortlisting, releasing and delivering the Applicant/Petitioner to the Kanyonyo Training Camp, the Respondents created a binding expectation that he would complete the course. To summarily reverse this without due process is procedurally unfair and irrational. 2. Conversely, the Respondent submitted as follows - whether the Re-call is a Breach of Articles 41 & 47 of the Constitution and the Fair Administrative Action Act (2015) - The Applicant alleges that the Respondents violated his rights under Articles 27, 41, and 47 of the Constitution. However, the Respondents respectfully submit that no such violation has been established on the facts presented before this Honourable Court. The evidence on record demonstrates that the Applicant's complaints arise solely from the correction of an administrative error and do not disclose any infringement of constitutional rights. The material before the Court shows that the Applicant was inadvertently issued with a letter nominating him to attend a Corporal-to-Sergeant Course. Upon discovering the error, the Respondents promptly took corrective action by issuing a signal recalling him from the course and directing him to collect the appropriate nomination letter for the Corporal Course for which he was eligible. The Respondents' actions were therefore aimed at rectifying a genuine administrative mistake and ensuring compliance with the applicable training and promotion procedures within the National Police Service. 20.1t is a fundamental principle of administrative law that public bodies are entitled, and indeed obligated, to correct genuine errors in order to ensure that their decisions conform to the law, institutional policies, and established procedures. The mere correction of an administrative mistake cannot amount to a violation of constitutional rights. While Article 47 of the Constitution guarantees every person the right to administrative action that is lawful, reasonable, and procedurally fair, that guarantee does not prevent a public authority from correcting an error where the correction is rational, lawful, and undertaken within a reasonable time. The constitutional requirement is that administrative action be exercised fairly and within the confines of the law, not that administrative errors, once discovered, must be perpetuated. This position was affirmed by the Court of Appeal in Judicial Service Commission v Mbalu Mutava & Another [201ZeKLR, where the Court held that the purpose of Article 47 is to ensure that administrative decisions are lawful, reasonable, and procedurally fair. The focus of the constitutional inquiry is therefore whether the impugned administrative action meets those standards. 1n the present case, the Respondents acted squarely within those constitutional parameters. The error was identified within approximately one week of the commencement of the training, and corrective measures were taken immediately thereafter. The Applicant was recalled and directed to report for the appropriate course consistent with his rank and eligibility. The decision was neither arbitrary, capricious, nor motivated by malice. Rather, it was necessitated by the need to uphold integrity, discipline, and compliance with the established promotion and training framework within the National Police Service. Consequently, the Respondents' actions were fully consistent with the national values and principles of governance, including good governance, accountability, transparency, and the rule of law as enshrined under Articles 10 and 47 of the Constitution. Furthermore, the Applicant's refusal to comply with lawful instructions requiring him to report and collect the correct nomination letter cannot form the basis of a constitutional claim. Public officers are under a duty to obey lawful directions issued by their superiors, particularly within a disciplined service such as the National Police Service. An officer cannot disregard lawful instructions and subsequently invoke the Constitution to shield himself from the consequences of such conduct. In the circumstances, the Applicant is improperly seeking to transform the lawful rectification of an administrative error into a constitutional grievance. The facts disclosed do not demonstrate discrimination, unfair labour practices, or unfair administrative action. Accordingly, the allegations of violation of Articles 27, 41, and 47 of the Constitution are without merit and ought to be rejected by this Honourable Court. Decision on issue 2 1. The petitioner alleged violations of the right to fair labour rights under Article 41 and of fair administrative action under Article 47. He further alleged that, in the recall form for the training corporal to sergeant course, the employer failed to take into account the officer's existing promotion record and relied on incorrect allegations that the petitioner had not served as a Corporal, despite official records confirming his status. The petitioner produced documents in support of his case, including a letter dated 25th February 2026 authored by the Commandant, SGB & VIP Protection Unit, titled Corporal to Sergeant Course No. 1 of 2026 (WMN-001), a duty roster for March 2026 in which he is ranked as APC and titled on course, and a letter dated 12th April 2021 authored by the Principal Secretary for the Ministry of Transport, Infrastructure, Housing and Urban Development. The letter was addressed to the Commandant of the SGB & VIP Protection Unit and titled Promotion Merit. It mentioned 3 officers, including the petitioner (APC), and recommended his promotion on merit to corporal on the basis of exemplary service. He also annexed the results of the officers' law examination, in which he scored a credit. 2. The court agreed with the respondent that there was no evidence of promotion of the petitioner to corporal. The recommendation to promote by the Principal Secretary following exemplary service offered at his residence remained a recommendation. There was no evidence of promotion on record. The petitioner relied on the decision of the High Court in Republic vs National Police Service Commission & Another ex parte Robert Patrick Anyangu (2014) eKLR, in which the High Court held that the disciplined forces are not exempt from the constitutional baseline of Fair Administrative Action. The court affirmed that administrative powers within the National Police Service must be exercised rationally, fairly, and free from whimsical or arbitrary shifts that disadvantage an officer's career progression. The court found that was good law. In the instant case, the petitioner was found to have been erroneously issued with a letter of training as corporal while he was a constable. The petitioner was released for the course on 3rd March, and a correction was made on 11th March 2026, when he was recalled from the Kanyonyo Training Campus. I find the correction was done in a timely manner and for a valid reason in compliance with Article 47 of the Constitution. 3. The petitioner alleged a legitimate expectation of promotion. He relied on the decision of the Supreme Court of Kenya in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others (2014) eKLR, which solidified the Doctrine of Legitimate Expectation. The Court held that a legitimate expectation arises when a public body creates a clear, unambiguous representation. That by shortlisting, releasing, and delivering the Applicant/Petitioner to the Kanyonyo Training Camp, the Respondents created a binding expectation that he would complete the course. The court finds that a legitimate expectation could not arise when the petitioner knew he was erroneously sent to a training course for corporal to sergeant while he was a constable. The court holds that the respondent, as the employer, was entitled to correct its mistake suo moto in the interests of harmony and discipline in the service. The petitioner was asked to collect the letter for training as corporal and failed to do so. He denied the signals, but from his own affidavit it is clear he was bent on pursuing the position of sergeant, as he had engaged an advocate for that purpose and a demand letter was issued. Legitimate expectation cannot be founded on a mistake. It was a mistake to issue the petitioner with a letter of corporal training while he held a lower rank of constable. The petitioner knew that fact. He cannot thus claim legitimate expectation to train as a corporal while he is a constable. I find the petition to be without merit. 4. In the interests of justice, the court asked the respondent’s counsel whether it was open to the petitioner to obtain the constable’s corporal promotional letter for training, and the state counsel, Olaibon, confirmed in the affirmative. 5. The court finds that the respondent was and is still willing to afford opportunity to the petitioner to be promoted to the rightful rank from constable to corporal. 6. In the upshot, the court found no merit in the petition. In the interest of justice, and substantive justice, the court makes the following orders- a) A declaration that the recall of the Petitioner, WILFREY MAUTI NDOTO, from the Border Police Training Campus promotion course corporal to sergeant was lawful b) The Respondent to facilitate the Petitioner with a constable-to-corporal promotional letter to proceed on training within 30 days, as it is apparent he was due for promotion. 1. Each party to bear own costs. 2. The file is marked as closed. 3. It is so Ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST 2026. JEMIMAH KELI, JUDGE. IN THE PRESENCE OF: Court Assistant: Otieno Petitioner: Nyakeriga Respondents:Olaibon