Danstan Miriti Mithika v Attorney General & Commissioner of Police [2017] KEELRC 764 (KLR)

REPUBLIC OF KENYA

EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

AT NAIROBI

CAUSE NO. 1934 OF 2015

DANSTAN MIRITI MITHIKA..……..…………….…………..CLAIMANT

VERSUS

ATTORNEY GENERAL ……………………………….1ST RESPONDENT

COMMISSIONER OF POLICE……………………….2ND RESPONDENT

JUDGEMENT

1. Through a plaint filed on 29th June, 2012, the claimant herein pleaded that he was enlisted to the Kenya Police Force on 31st August, 1996 and served for fourteen years until 5th May, 2010 when he was dismissed.

2. According to the claimant on 26th March, 2010 he went to Embakasi Police Station to check on his deployment for the week as was custom.  Since Embakasi was a walking distance from Tassia he chose to walk there.  The claimant further averred that on him way back from Embakasi he lost his service pistol.  According to him he reported the loss and recorded a statement at Embakasi Police Station after which he was put in custody on 27th March, 2010.  He was released on 28th March, 2010 and informed of the commencement of Orderly Room Proceedings against him which started on the same day he was released from custody.

3. The claimant further pleaded that upon conclusion of the orderly room proceedings, he was acquitted of the charge of being drunk on duty however on 5th May, 2010 he was issued with a dismissal letter.

4. The respondent on its part pleaded that the claimant was dismissed as a result of gross misconduct and negligence in the conduct of his duties and further that due process was followed before he was dismissed.  In his oral evidence in court, the claimant testified that he joined the force on 31st August, 1996 and served for fourteen years in different parts of the country.  It was his evidence that when he arrived at Embakasi at around 7:30 p.m. it started raining heavily forcing him to wait for the rain to subside.  On his way back he lost his pistol.

5. It was his evidence that the road was slippery and that the pistol slipped from the holder when he fell down.  He searched for it in the muddy waters but could not find it.  The duty officer found him and took him to the police station gate where he got a torch and went back to continue searching.  It was his evidence that he looked for the pistol the whole night without success. He then reported the issue to the Officer Commanding Station  who gave him a back up team to help with the search, still they could not find the pistol, the Officer Commanding Station  thereafter asked him to record an official report in the occurrence book. He was thereafter put in custody and released the next day to orderly room proceedings.

6. The claimant further testified that he was acquitted of all the offences except for loss of firearm.  According to him the orderly room proceedings were manipulated after he had signed them.  In cross examination he stated that he left for Embakasi past 9. 00 p.m. He further stated that the pistol was supposed to be on the waist however, there were different ways of carrying a firearm.  It was his evidence in cross-examination that a holster is used for carrying a pistol and that lanyad was for carrying a whistle.

7. The respondent called one witness, Mr Maurice Kiplangat who stated that the claimant lost his firearm under unclear circumstances and at around 3. 00 am he was found looking for it.  According to Mr Kiplangat, the claimant could not recall where he lost the firearm.  The DTO informed the Officer Commanding Station  about the loss and the claimant was asked to record a statement.  Mr Kiplangat further stated that loss of a firearm is a serious offence and the claimant ought to have reported the loss immediately.

8. According to the witness, the officer failed to secure the pistol with a holster and that the pistol is about 1. 2 kilograms and if it drops one would feel immediately.  According to him the officer was found to be irresponsible.  In cross-examination he stated that the officer took too much risk walking in the dark while armed.

9. Termination of employment contract is a normal phenomenon.  Employment and Labour Relations Court is there to ensure that in exercising the right to separate from a contract of service the stipulations contained in relevant labour laws as well as rules of natural justice are adhered to a much as possible.  The court does not insist on one hundred per cent compliance. All the court needs to be satisfied with is that there existed reasonable and or justifiable grounds that a reasonable employer or employee would consider separating from the contract as the best option and further that in carrying out the process of separation, fair procedure was followed.

10. That is to say in the case of an employee, the reasons for which the separation from the contract of employment is being considered should be reasonably brought to such employee’s notice and be afforded an opportunity to state his or her view on those reasons before the termination can be done.  The claimant herein was dismissed from the force for loss of a firearm under circumstances his employer considered was negligence on his part.

11. According to the claimant, he lost the firearm when he fell on a slippery path and suspected the firearm dropped in muddy water.  According to the respondent, if the firearm was properly secured in its holster it could not have fallen off.  Secondly, the claimant took too much risk walking in the dark under such circumstances while armed.

12. The respondent further took issue with the fact that the claimant did not report the loss immediately to his boss.  Loss of firearm is obviously a serious offence for which the respondent can dismiss unless good reason is given for the loss.  There is every danger that the lost firearm may end up in the wrong hands and be used by criminals to rob or even kill innocent people.

13. The court has carefully reviewed the evidence tendered by either party in these proceedings including oral testimony by both the claimant and respondent’s witness.  The court particularly read in detail the Orderly Room Proceedings and is satisfied that the claimant was made aware of the charges he was facing.  He listened to the evidence against him and cross-examined the witnesses.  He was found with a case to answer and called upon to tender his defence and call witnesses.  The claimant gave his testimony but did not call any witness.

14. The claimant in his own evidence stated that on the material day he decided to take a short-cut to Tassia Estate through Muradi area, midway he discovered that due to the heavy rains which had fallen earlier, the road was muddy, slippery and generally impassable, but owing to the distance he had covered he decided not to go back.  He therefore followed the same route as he slipped and fell occasionally.  Before getting to the other end of the short cut he discovered that his belt had gone loose and on checking he found his service firearm missing.

15. The claimant despite the risk involved decided to continue with the shortcut.  He therefore had the extra duty to safeguard his firearm as he slipped and fell occasionally as he said.  An officer and his firearm is more or less like a mother and her baby whereby it is near impossible for a mother to forget her baby anywhere.

16. The court is therefore satisfied that the reason and process of terminating the claimant’s services was fair.  The court’s concern is not that the officer lost his firearm but whether his conduct in the circumstances was that of a reasonable and prudent police officer.  The court is of the contrary view.

17. The claim is therefore found without merit and dismissed with costs.

18. It is so ordered.

Dated at Nairobi this 17th day of March, 2017

Abuodha J. N.

Judge

Delivered this 17th of  March, 2017

Abuodha J. N.

Judge

In the presence of:-

……………………………………………………………for the Claimant and

………………………………………………………………for the Respondent.

Abuodha J. N.

Judge