[2024] KEELRC 13246 (KLR)

Tulicha v National Police Service Commission & 4 others (Petition E204 of 2023) [2024] KEELRC 13246 (KLR) (27 November 2024) (Judgment)

Neutral citation: [2024] KEELRC 13246 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E204 of 2023

B Ongaya, J

November 27, 2024

IN THE MATTER OF ARTICLE 22(1) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10, 21(1) & (2), 25(c), 27(1) (2) & (3), 28, 41(1), 43(1) (e), 47(1) & (2), 50 AND 258 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE ENFORCEMENT AND PROTECTION OF THE BILL OF RIGHTS UNDER ARTICLES 19, 20, 21, 22 AND 258 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 4, 6 & 12 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, NO. 4 OF 2015 AND IN THE MATTER OF THE NATIONAL POLICE SERVICE ACT & NATIONAL POLICE SERVICE COMMISSION ACT

Between

Osman Mohamed Tulicha

Petitioner

and

National Police Service Commission

1st Respondent

Inspector-General of National Police Service

2nd Respondent

Deputy Inspector-General of Kenya Police

3rd Respondent

Commandant General Service Unit

4th Respondent

Attorney General

5th Respondent

Judgment

1. The petitioner filed the petition dated 30. 10. 2023 through Hassan Ibrahim & Company Advocates. The petitioner prays that:a.The acts of the respondents in suspending and dismissing the petitioner from the Police Service is a breach of the petitioner’s constitutional rights under Articles 25(c), 28, 41(1), 47(1) and (2), 50(1) of the Constitution of Kenya and that the same are null and void for all intents and purposes.b.That the refusal by the 1st respondent to communicate, consider and/or make any findings with respect to the petitioner’s appeal dated 21. 10. 2022 is unlawful and unconstitutional.c.That the entire disciplinary proceedings against the petitioner by the respondents contravened the petitioner’s rights to a fair hearing and fair administrative action, and the same are therefore unlawful and void ab initio.d.An order of judicial review of certiorari to issue to quash the suspension of the petitioner made in an orderly room proceeding on 14. 04. 2022 at Ruaraka, GSU headquarters.e.An order of judicial review of certiorari to issue to quash the dismissal of the petitioner by the 1st respondent on 04. 04. 2017 as communicated vide a letter dated 29. 09. 2022 for being unconstitutional and lacking procedural propriety without loss of benefits, rank or position.f.An order of judicial review of mandamus to compel the 1st respondent to reinstate the petitioner to the Police Service as his dismissal was unlawful, irregular and unjustifiable.g.An order directing the respondents to compensate the petitioner for the violation of his fundamental rights under the Bill of Rights in the Constitution.h.The respondent be compelled to expunge the records of the flawed disciplinary process from the petitioner’s service record.i.An order directing the 1st respondent to forthwith compensate the petitioner for lost employment benefits including unpaid salary dues for all the time the petitioner has been out of employment at the National Police Service inclusive of any salary increase within the said period up to the time this petition is determined.j.General damages for the blatant violation of the petitioner's rights as well as for pain and suffering occasioned upon the petitioner by the respondent’s actions.k.In the alternative to reinstatement, the petitioner also be entitled to pension and accrued benefits from the time of the determination of this suit to the period of lawful retirement from the service.l.Costs and interests be borne by the respondents.

2. The petition is supported by the petitioner’s affidavit in which he averred as follows:i.The 1st respondent employed the petitioner on 26. 04. 2015 as a Police Constable earning a monthly salary of Kshs. 32,880/=. He assumed duty and diligently served in the said position until 27. 04. 2022 when the 4th respondent unlawfully and/or arbitrarily without lawful cause suspended him from duty and subsequently terminated his employment on 29. 09. 2022. ii.The 4th respondent failed to issue the petitioner with prior notice to show cause and a further notice to allow him prepare for his defence before the orderly proceedings, and in the subsequent suspension and dismissal. In further violation of his rights under Article 40(3) and 43(1)(e), he was denied his final accrued payments and dues.iii.Prior to events culminating to his dismissal, the petitioner was on seven (7) days leave from 15. 03. 2017 and was required to report back to work on 21. 03. 2017. Unfortunately, he succumbed to a rare mental illness that rendered him functionally paralyzed mentally and psychologically, making it impossible for him to resume work as scheduled. He corresponded with the 4th respondent between 31. 03. 2017 and November 2021 through several letters in a bid to inform his superiors of his health condition and failure to resume work. However, his salary was withheld from April 2017 without any explanation and he enquired about the same from the 4th respondent, who had ignored the petitioner’s letters intimating his mental health condition. He tried traditional healers for assistance and visited the Marsabit County General Hospital upon full recovery, for assessment of his condition and upon which he was given a clean bill of health.iv.On 10. 04. 2022, the petitioner presented himself to the GSU headquarters at Ruaraka, Nairobi having fully recovered and attained full cognizant ability. He was subsequently suspended from duty on 14. 04. 2022 after being summoned to the orderly room. The suspension letter stated that his interdiction did not amount to a dismissal, that he was still a member of the police service and that he should await further disciplinary action from the 1st respondent. During the period of suspension, his salary continued to be withheld in disregard of his right to fair remuneration under Article 41. He was then issued with another dismissal letter on 29. 09. 2022 indicating that his dismissal was effective from 01. 04. 2017, being the date that the police service considered him a deserter. His dismissal was unlawfully effected retrospectively, which can only be construed to be as a means of justifying the withholding of his salary from April 2017. He was also denied his right to retirement benefits or any benefit he was entitled to contrary to his constitutional right to social security under Article 43. v.The petitioner appealed to the 1st respondent against the decision to dismiss him but the same is yet to be responded to.vi.The petitioner has a young family and is the sole breadwinner and the unlawful termination of his services has thus been detrimental to him. The respondents failed to consider his medical condition at the time of his absence from duty despite having informed the 4th respondent, whose action therefore amounted to discrimination and violation of his rights to fair labour practices, fair administrative action and fair hearing under Articles 41, 47 and 50 respectively.vii.The respondents have an obligation to observe, respect, protect, promote and fulfil the rights and freedoms enshrined in the Bill of Rights, Chapter Four of the Constitution.

3. In response, the 1st respondent filed its grounds of opposition dated 30. 05. 2024 asserting that:i.Desertion is a punishable offence within the National Police Service (NPS) and is explicitly outlined as such under Section 94 of the NPS Act. A police officer is considered to have deserted from service if he absents himself from duty without leave for a period exceeding 10 days; and is liable on conviction to summary dismissal or imprisonment for a term not exceeding two (2) years.ii.The petitioner absented himself from duty without leave for a cumulative period of 1,845 days or five (5) years, allegedly due to a mental health condition but has failed to sufficiently prove to the Court that he was diagnosed with mental illness by a board-certified psychiatrist. The petitioner has also failed to prove that he notified the service of his whereabouts for the period he was absent without leave.iii.Chapter 28, Section 58(2) of the Service Standing Orders provides the procedure for when a police officer deserts service to be that, the respective service headquarters or directorate shall be notified immediately, a case file shall be opened and a warrant of arrest obtained. Section 58(4) further provides that a member of the NPS who returns to his station even after being treated as a deserter and did not have the intention of deserting, disciplinary action for being absent without leave are instituted.iv.The petitioner was issued with a show cause on 11. 04. 2022 and given three (3) days to prepare for orderly room proceedings instituted against him in accordance with section 11(3) of the NPS Disciplinary Regulations, 2015. He was given a fair hearing because he appeared before the disciplinary committee and admitted to being guilty of being absent without leave for five (5) years.v.Equity will not allow a wrongdoer profit by a wrong and this Court should not allow the petitioner to profit by allowing any of the orders sought in his petition. The 1st respondent has not violated the petitioner’s rights and he is not entitled to any damages having deserted the service.vi.The 1st respondent could not have investigated the medical concerns as the numerous letters alleged to have been presented to it are not addressed to the 1st respondent and furthermore, show no proof that they were officially received by the service.vii.The petition is vexatious, malicious and an abuse of the court process and ought to be dismissed with costs.

4. The 2nd to 5th respondents filed a replying affidavit dated 17. 07. 2024 through the Hon. Attorney General. Their case was that the petitioner was dismissed from the service with effect from 01. 04. 2017 following a serious disciplinary action. Prior to his dismissal, the petitioner was granted seven (7) days off duty from work with effect from 10. 03. 2017 and upon expiry of the said days, he requested and was granted an extension of four (4) days. When the petitioner failed to report back on duty on 21. 03. 2017 without reasonable cause, relevant signal of his absenteeism was sent to police headquarters on 28. 03. 2017. He was then declared a deserter on 01. 04. 2017 after absenting himself for 10 days and on 06. 04. 2017, a signal to that effect was sent to police headquarters. The 2nd to 5th respondents were not aware of the alleged petitioner’s sickness during the period he deserted duty as he did not report the said sickness at any police station or officer, including the 4th respondent as required. He also did not raise the alleged medical condition or produce any medical records at the internal disciplinary proceedings to prove his illness.

5. The 2nd to 5th respondents further pleaded that the petitioner’s return was reported to police headquarters on 22. 04. 2022. He had appeared before the disciplinary committee on 14. 04. 2022 and charged with disciplinary offence of absenting himself without leave for 1,845 days contrary to section 88(2) 1 (h) of the Eighth Schedule of the NPS Act, No. 11A 2011. A plea of guilty was entered as recorded in the Defaulter Sheet and on 16. 05. 2022, the 3rd respondent recommended his dismissal from the Service. The petitioner was then suspended from duty with effect from 27. 04. 2022 and on an interim basis pending his dismissal. He was not entitled to payment of salary upon suspension was per provisions of the Service Standing Orders. Through a letter dated 29. 09. 2024, he was informed of the decision to dismiss him from the service.

6. It was the 2nd to 5th respondents’ averment that the petitioner lodged an appeal against the sentence on 21. 10. 2022. The GSU Headquarters Appeals Board recommended that the petitioner’s appeal be dismissed and his dismissal upheld. The Kenya Police Service Headquarters Disciplinary Appeals Board dismissed the appeal and upheld the petitioner’s dismissal. On 24. 03. 2024, the 2nd respondent submitted the petitioner’s appeal to the 1st respondent for consideration and the same is pending consideration by the 1st respondent.

7. The petitioner’s rebuttal in his supplementary affidavit dated 07. 10. 2024 was that the respondents declared him a deserter barely three days after he failed to report back from leave, which decision was made without conducting any investigation into the reasons for his absence, as per the Standing Orders, and was further premature and unjustified. That he was denied a fair chance to defend himself adequately in the disciplinary proceedings. He refuted the respondents’ assertion that Article 41 of the Constitution does not apply to members of the NPS by virtue of Article 24(5)(d) which limits its application under the Act.

8. The parties filed their respective submissions.

9. The Court finds that the petitioner has not placed before the court any material evidence to defeat the respondent’s case that he deserted duty and remained absent for a very long period of time. There is no valid medical reports on record to justify his allegation that he was absent for all the stated days because of ill health. The court finds that the petitioner was the sole and full author of his predicament. He fully caused his dismissal. All the allegations for violation of the Bill of Rights are unfounded. The respondents’ case and submissions are upheld.In conclusion, the petition is hereby dismissed with costs.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS WEDNESDAY 27TH NOVEMBER 2024. BYRAM ONGAYAPRINCIPAL JUDGE