https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1471

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR** **RELATIONS COURT AT NAKURU** **PETITION NUMBER E019 OF 2026** **BETWEEEN** FRANK MOMANYI NYAMWARO .............................................PETITIONER **VERSUS** 1. NATIONAL POLICE SERVICE COMMISSION 2. NATIONAL POLICE SERVICE 3. INSPECTOR-GENERAL NATIONAL POLICE SERVICE ....................RESPONDENTS *Rika J* *Court Assistant: Emmanuel Kiprono* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* *Kemunto Moenga & Company Advocate for the Petitioner* *No appearance for the Respondents* *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* **JUDGMENT** 1. This Petition was filed on 30th March 2026. 2. An affidavit of service sworn by process-server Victor Mutingu, shows that all the Respondents were duly served with the Petition, on 2nd April 2026. 3. There was no response filed, and upon hearing the submissions of Counsel for the Petitioner on 17th April 2026, the Court directed that it would issue a Judgment on the Petition today, rather that a Ruling for conservatory orders. 4. The Petition is founded on the affidavit of the Petitioner, sworn on 30th March 2026. 5. It is submitted for the Petitioner that he was recruited as a Police Officer on 17th December 2004. He was deployed to the diplomatic unit. 6. He was transferred to Archers Post Police Station in 2013, then on to Wamba Police Station in 2016. 7. In the same year he was found by members of his family at the central business district Nairobi, disoriented and unkempt. He was not able to account for his condition. 8. He was taken to taken to Kisii Teaching and Referral Hospital, where he was diagnosed with bipolar affective disorder. 9. He was treated continuously for about 3 years. 10. On 16th September 2020, he was certified to have sufficiently recovered, and declared fit to resume duty. 11. In 2020, movement of persons countrywide, was restricted on account Covid-19 pandemic. 12. The Petitioner was only able to report back to his Station at Wamba, Samburu County, on 16th March 2021. 13. He was advised that a criminal case had been preferred against him in his absence at Maralal Senior Resident Magistrate’s Court. He presented himself there, and was informed that the file was closed in 2017, and a warrant issued for his arrest, lifted. 14. He was informed in the month of March 2021, by Samburu East Subcounty Police Commander, Juma Boy Ombata, that he would be subjected to subordinate disciplinary committee proceedings, for the offence of being absent without leave. 15. He was instructed to remain within the jurisdiction of Wamba Police Station. He would attend routine briefings, but would not be assigned duty. 16. He remained effectively under interdiction and supervision from March 2021 to April 2024. He was not paid any salary, or subsistence allowance, over this period. 17. He was suspended on 18th March 2024, pending disciplinary proceedings. He successfully appealed against suspension, and was returned to active duty, in October 2024. 18. He was deployed to Maralal Police Station, from where he continues to serve. 19. Notwithstanding his resumption of duty, the Respondents continue to withhold his salary and benefits. He has not been paid anything from the time he fell ill in March 2016, to-date. 20. He states that the disciplinary process against him was unlawful. He was issued letter to show cause on 26th May 2022. 21. He responded and was invited to attend a subordinate disciplinary committee hearing, on 29th March 2022, to answer a charge of being absent from duty without leave. 22. He was found guilty and sentenced to pay a fine of Kshs. 4,700, and a forfeiture of Kshs. 14,348. 23. The Respondents continued to treat the Petitioner as if he was still under disciplinary proceedings, even after the sentencing. 24. One year after the subordinate disciplinary committee decision was handed down to him, he was issued another letter to show cause, dated 27th June 2023. 25. He was confronted with the same charges of absence without leave. 26. He was heard on 20th December 2023. The committee recommended that his driver’s licence is forfeited, a sanction which was irrelevant to the charge of absence without leave. 27. On 8th April 2024, he received a letter of suspension, effective 18th March 2024. He was advised that suspension was pending determination of the recommendation of the second subordinate disciplinary committee. 28. The suspension letter directed that the Petitioner’s salary is stopped, notwithstanding that it was stopped in 2016. 29. He appealed against suspension, which was lifted in October 2024. 30. He was deployed on active duty at Maralal Police Station, through a signal by the Samburu Subcounty Commander, dated 23rd October 2024. 31. He reported on 25th October 2024. 32. Regrettably, his salary and benefits continued to be withheld. 33. He had at the time of approaching the Court, gone for 10 years without a salary. He has been compelled to depend of extended family networks for subsistence. 34. He submits that under Chapter 30[15] of the National Police Service Standing Orders, and Section 11[8] of the National Police Service Commission [Discipline] Regulations, disciplinary proceedings should be conducted expeditiously, and not delay beyond 28 days. 35. The disciplinary process, in his case, dragged for more than 5 years. It has been punctuated with unexplained delays, shifting penalties, duplicative proceedings. 36. The Petitioner submits that the Respondents have violated: his constitutional right to fair administrative action [Article 47]; freedom from slavery and forced labour [Article 30]; the National Police Service Standing Orders; workplace discrimination [Article 27]; right to human dignity [Article 28]; the National Police Service Standing Orders; and, the National Police Service Commission [Discipline] Regulations. 37. His prayers are: - 38. Declaration that the Respondents violated the Petitioner’s rights and freedoms under Article 27, 28, 30 and 47 of the Constitution. 39. Declaration that withholding of the Petitioner’s salary during the period of interdiction was in breach of Section 14 [8] of the National Police Service Commission [Discipline] Regulations and Chapter 30, Section 47 [5] of the National Police Service Standing Orders. 40. Declaration that disciplinary proceedings against the Petitioner are in breach of the said Articles, Regulations and Orders. 41. The Respondents are compelled to pay the Petitioner’s salary from October 2016, to-date. 42. Compensation for constitutional violations. 43. The Respondents are restrained from victimising the Petitioner on account of instituting the Petition. 44. Costs to the Petitioner. 45. The issues are: whether the Respondents violated the Petitioner’s constitutional and statutory protections and guarantees; and whether his prayers are merited. **The Court Finds**: - 1. The Petition is uncontested. It represents a sad showcase of public service entities gone rogue, unable or unwilling, to manage their human resource affairs, in accordance with basic tenets of the Fair Administrative Action Act, the National Police Service Act, the Employment Act, Rules of Natural Justice, and the Constitution of Kenya. 2. The Petitioner was enlisted in the National Police Service on 17th December 2004. 3. He was posted to diplomatic unit, before transfer to Archers Post Police Station and Wamba Police Station. 4. He was stationed at Wamba Police Station in October 2016. He was fell ill, while visiting Nairobi. He was attended at Kisii Teaching and Referral Hospital, where he was diagnosed with bipolar affective disorder. He was treated for the next 3 years, after which he was declared healed, and certified as fit to resume duty. 5. Up to this point, he did not clarify to the Court if he sought sick leave from the Respondents, pursuant to Section 30 of the Employment Act, and Chapter 68 of the Service Standing Orders. 6. The Act requires an Employee who seeks sick leave, to supply to the Employer a certificate of incapacity to work, not merely proof of illness, which must be signed by a duly qualified medical practitioner. The Employee shall notify, or cause to be notified the Employer, about his incapacity to work as soon as practicable. 7. Chapter 68 of the Service Standing Orders, requires that an Officer who is off-duty on account of illness for more than 48 hours, shall obtain and provide the Employer a medical certificate duly signed by a qualified medical practitioner. A notification to the headquarters, showing the nature of illness must be communicated. 8. The Petitioner does not appear to have sought sick leave after his bipolar diagnosis. There is no certificate of incapacity to work, issued upon him by a qualified medical practitioner. There is no evidence of notification of illness on record. 9. The Petitioner states he presented himself at Wamba Police Station and resumed duty on 16th March 2021. 10. He had been away for 5 years without leave, or notification to the Respondents about his illness, and would justifiably have been deemed to be a deserter. 11. Section 94 of the National Police Service Act, provides that an Officer who absents himself for a period exceeding 10 days, is deemed to have deserted, unless the contrary is proved. 12. The offence of desertion is both criminal and disciplinary in nature. The Petitioner was advised that he would be subjected to subordinate disciplinary committee proceedings on account of desertion, in March 2021 when he reappeared. 13. He was informed that a criminal case against him had been filed for desertion at SRM’s Court at Maralal, and a warrant of his arrest issued. The case was however withdrawn, and warrant lifted in 2017, before the Petitioner resurfaced. 14. The Court does not agree with him that he ought to be paid his salary and benefits from 2016. He was a deserter until he resurfaced in March 2021, and his salary was lawfully stopped when he went missing, without leave or notification to the Respondents. It was stopped in accordance with the National Police Service Act. He should not be rewarded from the public coffers, for a period when he did not render any service, and when he was AWOL. 15. He was on duty from 16th March 2021, and the Court does not see why the Respondents should have continued to deny him his salary and benefits. They received him back when he resurfaced, and put him through the disciplinary process. He was assigned to a Station. 16. He was issued letter to show cause on 26th May 2022, he replied and was invited to subordinate disciplinary committee hearing, on 29th May 2022. 17. He was heard and convicted for being absent without leave. 18. He was fined Kshs. 4,700 and subjected to a forfeiture of Kshs. 14,348. 19. This is evinced in the record of orderly room proceedings. 20. The Petitioner accepted the conviction and sentencing, and was ready to put the matter behind him. 21. Instead, the Respondents issued the Petitioner a second letter to show cause dated 22nd June 2023, asking him to respond to the same offence of being absent without leave, over which he had already been tried and convicted. 22. What was the legal basis of this second letter to show cause, which paved way for a second subordinate disciplinary committee hearing? 23. The Petitioner was heard once again, over the same allegation, and this time round, sentenced to forfeiture of his driver’s permit. 24. What was the link between the repeat charge of absence without leave, and the sentencing requiring that the Petitioner’s driving permit, is forfeited? 25. The Petitioner continued serving, and up to the date he filed the Petition in 2026, he had not been advised on the outcome of the recommendation made by the second subordinate disciplinary committee to the Respondents, that his driver’s permit is forfeited. 26. Upon closure of the second disciplinary hearing, the Samburu County Police Commander wrote to the Petitioner, alleging to suspend him, pending determination by the Respondents, on the recommendation for forfeiture of the driver’s permit. 27. The Petitioner was advised that his salary has been stopped with effect from the date suspension, 18th April 2024, while in truth, the Petitioner’s salary was stopped in 2016. 28. He appealed against this incomprehensible suspension on 24th April 2024. 29. Suspension was lifted, and through signal dated 23rd October 2024, the Petitioner was reassigned duty at Maralal Police Station by his County Commander. 30. He resumed duty and continues to serve, but shockingly, his salary continues to be withheld. 31. Notably, criminal charges for desertion were presented against him in Court and warrant of his arrest issued. The case was withdrawn, and warrant of arrest lifted in 2017. He was never charged again, when he presented himself at his Station. 32. He was therefore the subject of both disciplinary and criminal processes, which terminated in their own ways. 33. The Petitioner is serving in the National Police Service, under conditions which fit the description of slavery, servitude and forced labour. 34. He correctly submits that the Respondents have violated his right to be free of these vices under Article 30 of the Constitution. 35. He ought to have been paid his salary at the very least from 16th March 2021, when he returned to duty, and was received by his Commander, and duly taken through a disciplinary hearing. 36. There was no justifiable reason to take him through a second hearing, and expose him to double jeopardy. He was punished for absence without leave thrice- through a fine and forfeiture in the first disciplinary process; through the bizarre forfeiture of driver’s permit in the second process; and through the devastating and unending stoppage of salary. 37. Section 89[3] of the National Police Service Act, which demands that all disciplinary proceedings shall be in accordance with the Service Standing Orders, as approved by the Commission, and shall comply with Article 47 of the Constitution, was completely disregarded. 38. Article 47 grants every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. These rights and protections are elaborated under the Fair Administrative Action Act. 39. The repeat subordinate disciplinary hearings; the repeat sentencing; and punitive stoppage of salary, violated the Petitioner’s right of fair hearing, under Article 50 of the Constitution. His disciplinary process has not formally been concluded without unreasonable delay. He was tried for an offence in respect of an act for which he was previously convicted by the subordinate disciplinary committee. 40. That he continues to work without a salary, while colleagues perform the same work, and are paid their salaries, amounts to discrimination against the Petitioner. He is entitled to equal pay, for work of equal value. His rights not to be discriminated against, to receive fair remuneration, and to work under reasonable conditions, under Articles 27 and 41 of the Constitution have been abrogated. 41. The Court agrees with his submission, that his right of inherent dignity under Article 28 of the Constitution, has severely been impaired by the Respondents. He has worked without a salary, and been compelled to rely on handouts for subsistence, from his extended family, while discharging police service in Samburu County. The Respondents have for years, mortified the Petitioner. 42. His Petition is urgent, unopposed, and highly merited. Section 17 of the Employment Act protects Employee’s salary. The salary must be paid when it falls due, and its prolonged withholding by an Employer, subjects an Employee to conditions of slavery and servitude. The Petitioner requires judicial intervention, without further delay. **IT IS ORDERED**: - 1. **It is declared that the Petitioner’s rights and freedoms under Articles 27, 28, 30, 41, 47 and 50 of the Constitution have been violated by the Respondents.** 2. **It is declared that the Respondent’s withholding of the Petitioner’s salary and benefits from 16th March 2021 to-date, is against the National Police Service Act, the Discipline Regulations and the Service Standing Orders.** 3. **The Respondents shall pay the Petitioner all his salary from 16th March 2021, with all accruing increments and benefits.** 4. **The Respondents shall pay general damages for violation of the Petitioner’s constitutional rights and freedoms, at Kshs. 1,300,000.** 5. **The Respondents shall not victimize the Petitioner, on account of his petitioning the Court.** 6. **Costs to the Petitioner.** Dated, signed and delivered electronically at Nakuru, under Rule 68[5] of the E&LRC [Procedure] Rules, 2024, this 29th day of May 2026. James Rika Judge