https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2224

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **PETITION NO. 105 OF 2016** **DAVID WAMBUGU PETITIONER** *VERSUS* **NATIONAL POLICE SERVICE 1ST RESPONDENT** **ZACHARY KINGORI MWANGI 2ND RESPONDENT** **NATIONAL POLICE SERVICE COMMISSION 3RD RESPONDENT** **ATTORNEY GENERAL 4TH RESPONDENT** **JUDGMENT** In the petition, the petitioner is seeking the following Order: 1. A declaration that the petitioner’s fundamental rights and freedoms have been violated. 2. An order of certiorari is issued to quash the entire decision to force the petitioner to retire before his time and against his will from the Kenya Police Service. 3. A mandatory injunction is to be issued to reinstate the petitioner into the police service. 4. Compensation to the petitioner for pain, suffering, and medical expenses due to the injuries sustained in the course of official duties. 5. Compensation for loss of earning for the last 11 years. 6. Compensation for the petition for the violation of his fundamental rights and freedoms. 7. Costs of the petition. The petitioner is an adult male working for gain in Nairobi as a security guard. He formerly served in the General Service Unit (GSU) of the 1st respondent's General Duties Police Department as a Police Corporal. The 1st respondent is the office established under Article 243 of the Constitution. The 2nd respondent is the former Provincial Police Officer, Nairobi, currently attached to Kenya Police Headquarters. The 3rd respondent is the office established under Article 246 of the Constitution. The 4th respondent is the office established under Article 156 of the Constitution. The petition is that on 3 December 2002, the former President, Hon. Mwai Kibaki, the then official leader of the opposition, together with the petitioner and 2 others, was involved in a road accident while on duty. The petitioner was aboard the former president’s private vehicle registration No. KAH 016G. The accident occurred at the Machakos junction. The accident affected the petitioner’s health, and he continues to suffer from intermittent health problems as a result. He continues to receive treatment at the Nairobi Hospital and Imperial Health Services in Nairobi. The former president offered to settle the petitioner's medical bill through the State House account. The petitioner kept personal contact with the former president. When the 2nd respondent learnt of this relationship, he claimed that he was extorting money from State House without following protocols. On 20 January 2005, the OCS Kilimani Police Station, Chief Inspector Samuel Otongo, and 2 other police officers went to the petitioner’s residence in Highridge. They ordered him to go to the station to meet the 2nd respondent. He threatened him with dire consequences for seeking financial assistance from the former president. Later, the petitioner was taken to the 2nd respondent's office and forced to sign an early retirement letter. He was threatened with his life if he failed to sign the letter. On 21 January 2005, the petitioner was presented with an early retirement letter contrary to his wishes and in breach of his human rights. He was forced into an early retirement with effect from 20 January 2005. Aggrieved by the decision. The petitioner went to the Commissioner of Police, Hussein Ali, with a letter of complaint. There was no feedback. The 2nd respondent falsified information to the media and stated that the petitioner had lost a gun under suspicious circumstances, which was not correct. The acts and conduct of the respondents violated the petitioner’s rights under Articles 10, 22, 23, 47, 50, 41, 165, 249 of the Constitution and Section 12 of the Fair Administrative Action Act. The Supporting Affidavit of the petitioner supports the petition. His case is that he was retired from service against his wishes, and despite a letter of protest to the employer, he received no response. The early retirement was after a traffic accident that left him injured and in need of constant medical care and attention. The orders sought should be issued. There are no responses from the 1st and 2nd respondents. In reply, the 3rd respondent filed the Replying Affidavit of Johnston Kavuludi, the chairman, who avers that the petitioner was enlisted in the service on 4 October 1992. He was formerly with the GSU and served as the security detail for the former President, Hon. Mwai Kibaki, while he was the official opposition leader. Kavuludi avers that on 3 December 2002, while on the campaign trail for president, the petitioner, together with the former president, were involved in a road accident along Mombasa Road at the Machakos turnoff and sustained serious injuries. He was admitted to the Nairobi Hospital. After discharge, the petitioner continued with medical checkups. In January 2003, the petitioner was promoted to the rank of corporal while attached to the President’s security detail and officially transferred from Kilimani Division to the Presidential Escort Unit (PEU). He was later transferred back to Kilimani Division and continued to serve as the President’s security detail until 2005, when he wrote a letter to the former president requesting assistance to offset his medical bills and to be transferred back to the PEU to be entitled to allowances. Kavuludi avers that the former president did not agree to settle the petitioner’s medical bills as alleged. The petitioner applied for early retirement on 20 January 2005 under Rule 12-20. The Commissioner of Police approved the request for early retirement. The petitioner was fully paid his retirement dues, and the pension department deposited the monies into his account at Equity Bank Othaya on 10 March 2007. The allegation of closeness to the former president and, hence, payment of medical bills is without proof. The allegation against the 2nd respondent that he directed the petitioner to resign is without proof and therefore baseless. The petitioner voluntarily retired from service. The allegations made of violation of fundamental rights and freedoms are without justification and should be dismissed with costs. The 3rd respondent also filed the Supplementary Affidavit of Peter Leley, the Chief Executive Officer (CEO) of the National Police Service Commission (NPSC), and averred that the affidavit is in further support of the Replying Affidavit of Johnston Kavuludi. The 3rd respondent is established under the Constitution, Article 246, with a mandate to recruit and appoint persons to hold or act in offices within the service, confirm appointments and determine promotions and transfers within the National Police Service (NPS). The NPS mandate is protective in nature, focusing on the ongoing management. It does not extend to investigating or adjudicating personnel decisions that predate its establishment. It has no lawful basis to assume responsibility for decisions made before its creation. Leley avers that the events relating to the petition occurred in January 2005. The NPSC did not exist. The decision to retire a police officer vested in the Commissioner of Police subject to directions by the Minister responsible for internal security. Any police officer aggrieved by a decision was therefore required to seek an audience with the Commissioner of Police and lodge an appeal with the Minister. Failure by the Minister to address such would be subject to judicial review proceedings. The provisions of the constitution relied upon by the petitioner are a creation of the 2010 constitution. Because the cause of action accrued in January 2005, such provisions do not apply. Reliance on the constitution would impose constitutional liability for acts that were lawful under the then-existing constitutional and legal framework. The doctrine of non-retroactivity precludes assessing past conduct against constitutional standards that were not in force at the material time. The petitioner’s allegations that he wrote to the 3rd respondent and received a response do not demonstrate a constitutional violation by the NPSC. The correspondence complained of did not trigger any statutory process within the NPSC mandate following retirement in 2005. The petitioner accepted his retirement dues and pension benefits on 10 March 2007. This acceptance is inconsistent with the claim now advanced that the retirement was involuntary, unlawful or unconstitutional. Having received retirement benefits, the petitioner cannot now approbate and reprobate by simultaneously seeking to impugn it. The petition was filed 11 years after the alleged coercion in January 2005. The apparent delay is not addressed, yet the reliefs sought are equitable. Leley avers that the delay in filing the petition has occasioned substantial prejudice to the respondents; with the passage of time, records are hard to retrieve; the court file, in particular, is missing, lost, or cannot be traced. During the reconstruction of the file, the petitioner omitted records that were part of the 3rd respondent’s Replying Affidavit of 19 July 2017. The petitioner has sought to reconstruct his file but added new records that were not part of the original file. He has challenged the Replying Affidavit of Johnstone Kavuludi as made by a person without authority; yet he has sought to rely on information and words stated by the 2nd respondent. There is no evidence to support the allegations made against the 2nd respondent. There is no case against the 3rd respondent violating the petitioner’s rights, given that he retired before the existence of the NPSC. Leley avers that the petitioner is seeking an order of certiorari to quash the retirement decision. Under Order 53 rule 2 of the Civil Procedure Rules, an application for certiorari must be made within 6 months of the decision sought to be quashed. Retirement was in January 2005, and the petition was filed in July 2016. The prayer is time-barred. The court lacks jurisdiction to issue the orders sought. The petitioner has been out of service since January 2005. An order of reinstatement after the inordinate delay is not tenable. Under section 12(3)(vii) of the Employment and Labour Relations Court Act, such an order cannot issue after 3 years. Regarding orders seeking compensation for medical expenses, work injury claims can only be made under the provisions of the Work Injury Benefits Act. The petitioner has not demonstrated that he pursued the available legal mechanisms under the law. Leley avers that the petition as framed lacks merit and should be dismissed with costs. On the petition, the petitioner submitted that he was involved in a road traffic accident while on duty with the former president. He was treated, and the former president helped him pay his medical bills. When the 2nd respondent learnt of this, he visited him and forced him to retire from the service. This was through coercion and denied him his constitutional rights. In response, the respondents have not denied that the accident occurred and that the petitioner was injured. There was coerced retirement through a letter dated 20 January 2005. The payments made to the petitioner were not compensation for pain and suffering or for medical costs but related to the petitioner’s employment earnings and pension. These payments do not absolve the respondents of the obligation to compensate for violating the petitioner’s rights. **Determination** On the petition, the affidavits, and the written submissions, the issues that emerge for determination are whether there are constitutional violations against the petitioner and whether the remedies sought should be granted. The petition herein relates to events of 3 December 2002 and 20 January 2005. The petitioner’s case is that following a road traffic accident while on the campaign trail with the former president, he suffered injuries and was admitted to hospital. He was treated, and the former president assisted in the payment of hospital bills. The petitioner applied for early retirement on 20 January 2005. The Commissioner of Police approved the request for early retirement. He has since been paid his retirement benefits, including his pension. The petition is that the 2nd respondent coerced the early retirement. The petitioner protested to the 3rd respondent without feedback; hence this petition. The 1st and 2nd respondents did not file responses herein. The 3rd respondent denied the claims and further asserted that the cause of action arose in 2005, before its creation, and hence cannot bear liability retrospectively. The petitioner’s delay in filing his petition is inordinate; with the passage of time, records have been lost, misplaced and cannot be traced. The 11-year lapse in addressing the allegations cannot be justified, and the orders sought should not be issued. Further, upon the petitioner accepting his retirement dues and pensions on 10 March 2007, he cannot turn back and claim that his rights were violated. He is estopped from making such claims, and the petition should be dismissed with costs. Although the court is allowed to hear and determine constitutional petitions under Article 165(5) (b) of the Constitution, such must be read together with Article 162(2)(a) thereof. Further context must be provided for Article 162(3) of the Constitution and, in particular, the Employment and Labour Relations Act. The court can interpret the rights under Article 41 of the Constitution. This includes the right to fair labour practices. See **Kenya Ports Authority v Joseph Munyao & others**, **Petition No. E008 of 2023,** the Supreme Court of Kenya held: *… the right to “fair labour practices” encompasses the constitutional and statutory provisions and the established workplace conventions or usages that give effect to the elaborations set out in article 41 or promote and protect fairness at work. These include provisions for basic fair treatment of employees, procedures for collective representation at work, and, of late, policies that enhance family life while making it easier for men, women and persons with disabilities to go to work. …* *From the above definition unfair labour practice encompasses all conduct before, in the course of employment, during and after termination of employment. The provisions of Article 41 therefore encompass the full spectrum of labour practices. The provisions of Article 41 are borne from the realization that employment and/or the right to work is a human right. The right is also linked to other rights in the Bill of Rights, especially the protection of life and the dignity of a person. The right is therefore a principle with legal obligations.* The rights thus flowing from the Constitution and under the law must be reviewed in context. These cannot be abstract. The petition urges a case of violation of his rights arising from the alleged coerced retirement by the 2nd respondent. He seeks an order of certiorari to quash the decision retiring him from the KPS. Indeed, as submitted by the 3rd respondent, an order of certiorari is regulated under Order 53 of the Civil Procedure Act and the Rules thereto. Although the Employment and Labour Relations Court (Procedure) Rules allow a party to file his Memorandum of Claim and assert judicial review orders, Rule 10 requires adherence to sections 8 and 9 of the Law. Reform Act and Order 53 of the Civil Procedure Rules. In **West Kenya Sugar Company Limited v Kenya Sugar Board & another [2014] eKLR** the court held that the Constitution has expressly expanded the scope of judicial review in relation to breach of fundamental right or freedom in the Bill of Rights, as by Article 23(3) (f) the Court can grant an order of judicial review as a relief for breach of fundamental right or freedom. However, the reliefs sought by the applicant must be specific and in tandem with the reliefs sought. To thus seek to quash a decision issued on 20 January 2005 would not elicit the remedies sought. The fact of the petitioner having been paid his terminal dues, including access to pension, is not challenged. The delay in addressing his case, based on allegations that he was coerced by the 2nd respondent to resign, is lost by his acceptance of the payment of terminal dues upon retirement. The retirement was approved by the Commissioner of Police, not by the 2nd respondent. The person and office should remain separate. The petitioner is also seeking an order of reinstatement. Under section 12(3) of the Employment and Labour Relations Act and section 49(4) of the Employment Act, the parameters governing reinstatement are set out. Fundamentally, such a relief can only be issued in the rarest of cases as it seeks specific performance and thus should be issued within 3 years from the date of cessation of employment. In **Kenya Power & Lighting Company Ltd v Wasike [2017] KECA 446 (KLR)** the court held that before a court can issue an order of reinstatement, consideration must be section 49 and 50 of the Employment Act. in in **Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others [2014] eKLR** which held that reinstatement, though available as a remedy, is not automatic and is grantable only in exceptional circumstances with each case being decided on its peculiar facts and the court being called upon to consider the practicalities of such an order and compensation being an alternative remedy in appropriate cases. The reliefs sought are not available. The fundamental issue is that the petitioner sat on his rights. From January 2005, he did not file this petition until July 2016. Although the allegations are that, in 2005, he was threatened by the 2nd respondent with dire consequences, and that he filed a protest with the 1st respondent, he does not state why it took him 11 years to urge his case, as is done herein. Moving the court as herein done requires the court to consider the availability of records. An employer such as the 1st respondent is permitted to retain work records for 5 years. The rationale is that, over time, employees move, retire, or leave the organisation, and institutional memory is lost. Hence, upon exit from employment, under section 89 of the Employment Act, the employee is allowed 3 years to pursue his case seeking employment rights. Under section 10(6) and (7) read with section 74, the employer is allowed to keep work records for 5 years only. By filing a petition instead of a Memorandum of Claim, the time limitations apparent cannot be extended. The court is aware that article 24(1) of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) provides that a right or fundamental freedom in the Bill of Rights shall not be limited except by law and then only to the extent that the limitation is reasonably justifiable in an open and democratic society based on human dignity, equality and freedom and taking into account the relevant factors highlighted under this article. Article 25, on the other hand, provides for specific rights and fundamental freedoms that shall not be limited despite any other provisions of the Constitution. However, articles 24 and 25 of the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) yields the interpretation that the right to equal protection and benefit of the law are not absolute rights that cannot be limited pursuant to the provisions of article 25 of the [*Constitution*](https://new.kenyalaw.org/akn/ke/act/2010/constitution) but that the rights can be limited by application of the relevant laws provided that the limitation is reasonable and justifiable in an open and democratic society based on inter-alia human dignity, equality and freedom. See [**Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2022/13118/eng%402022-05-17)**.** In this case, the reliefs sought have accrued under an employment relationship and from the petitioner's service; damages, compensation, or an order of reinstatement under section 12 of the Employment and Labour Relations Court Act are subject to time limitations. Regarding the claim for compensation for pain and suffering, the petitioner filed various medical records. This relates to a medical assessment dated 3 December 2002. Upon retirement from service in January 2005, under the applicable constitutional and legal regime, the petitioner was paid his terminal dues and pensions. He did not raise the allegations on his health as assessed in 2002. Any resulting claims thereof, if any, should have been made against the Commissioner of Police who approved the early retirement application. Before conclusion, the 3rd respondent has made a case that there is no liability against it as the cause of action accrued in January 2002 before its existence. Indeed, it is a legal principle that a legal persona must exist to bear responsibility. An entity that can sue and be sued. The employment relationship between the petitioner and the 1st respondent was direct. He exited the service upon retirement on 20 January 2005. Liability cannot vest in the 3rd respondent in law or in fact. The payment of terminal dues including pensions notwithstanding, the entity of the 3rd respondent is improperly enjoined in these proceedings. The petition must fail. On costs, the petition has taken over 10 years to conclude. It has passed through many hands and Judges. This cannot be solely the petitioner's fault, as the court file went missing, hindering his access to justice. The file has since been reconstructed, enabling this process to the judgment. There should be no penalty in costs. **Accordingly, the petition is found without merit and is hereby dismissed. No orders on costs.** **Delivered in open court this 30th day of July 2026** **M. MBARŨ** **JUDGE** **In the presence of:** **Court Assistant: Kemboi** **……………………………………………… and …………………………………..………**