Gedo Abdulahi Mohamed v Commissioner of Police & another [2015] KEELRC 980 (KLR)

Full Case Text

REPUBLIC OF KENYA

EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA

AT KERICHO

CAUSE NO. 30 OF 2014

(Before D. K. N. Marete)

GEDO ABDULAHI MOHAMED….....................................................CLAIMANT

VERSUS

COMMISSIONER OF POLICE….........................................1ST RESPONDENT

THE HON. ATTORNEY GENERAL.......................................2ND RESPONDENT

JUDGMENT

This matter was originated in the High Court of Kenya at Kericho as Petition No.1 of 2012. On 1st April, 2014 by the consent of the parties the matter was transferred to the Employment and Labour Relations Court, Kisumu thus resolving the apparent issue of jurisdiction of court. The matter would variously be heard by the Kisumu court until the 30th October, 2014 when it was referred to this court. It is dated 30th January, 2012 and seeks the following orders of court;

A declaration that the 1st Respondent's decision to remove the Petitioner from the Police Force without any justifiable cause and without a fair hearing violates or infringes on the Petitioner's fundamental rights and freedoms provided in Article 25, 41 and 43 of the Constitution and is thus null and void.

Further or in alternative to prayer (a) above, a declaration that the Government do re-enlist/reinstate the Petitioner to the Police Force and pay him his full emoluments including salaries and other allowances in arrears.

Costs of this Petition.

Such other or further orders as this Honourable court may deem fit and just.

The Respondent vide a Replying Affidavit sworn on 17th September, 2013 opposes the petition and prays that the same be dismissed with costs.

The Petitioner’s case is that this petition is instituted in public interest and also in his own interest per under the provisions of Article 22 of the constitution of Kenya, 2010 and also Article 3(1) of the said constitution.

His further case is that he was enlisted in the Kenya Police Force on 12th July, 1980 as Police Constable No.38254. On 11th November, 1988 at eight years of service the Petitioner received a warning letter requiring that he stops committing any further offences in the police force in accordance with the Police Standing Orders. He had by this time committed only five (5) misdemeanors for which he had been punished. On 11th February, 1990, he received a letter dated 29th May, 1989 removing him from the force.

On 12th February, 1990, the Petitioner wrote a letter of appeal to the Commissioner of Police questioning his removal and citing comprehensively his grounds of appeal but did not receive a response despite several reminders. He contends that he had not, after the warning letter of 11th November 1988 committed any offence to warrant removal and therefore his purpotted removal was irregular. A subsequent treatment of the removal from the force as retirement and a payment of Kshs.24,978. 00 to him as pension gratuity, he pleads, is speculatory and arbitrary.

The Petitioner further pleads that 1st Respondent had no legal right to remove him or even retire him from the force as follows;

The Petitioner had already been duly punished for the misdemeanors he had committed accordingly (sic) to the force standing orders by paying the fine he was ordered to pay. He was also warned not to commit any further offence under the police force by the same 1st Respondent and was assigned to continue with his normal duties.

That the Petitioner has not committed any offence under the Police Force Standing Order and/or regulations to warrant him being removed from the force and his removal from the force amounts to double punishment (double jeopardy).

The Petitioner has not attained the age of retirement.

The Petitioner's appeal against removal has not been heard and disposed.

The Petitioner has not been given an opportunity to be heard, in fact he has been condemned, unheard by the Commissioner of Police which is against the principles of natural justice.

The Petitioner's unlimited right to a fair trial under Article 25 (c) has been violated in that he has been removed from the force without his appeal being heard and without any or justifiable cause whatsoever.

The Petitioner in the penultimate contends that his removal from the force was irregular, illegal and unjustified and has rendered him unemployed and denied him the resources necessary to enjoy economic and social rights as envisaged in Article 43 of the constitution. He therefore sets out a catalogue of prayers as set out earlier at the inception of this judgment.

The Respondent, vide a Replying Affidavit sworn on 17th September, 2013 opposes the petition and provides that the Petitioner had accumulated five (5) convictions on disciplinary offences in his stint of service and a warning letter made to him as hereunder;

That on 10/1/1982 at Kisumu Police Station “without reasonable cause failed to attend lecture contrary to Regulation 3 sub regulation 20 of the Police Regulations”. He was fined Kshs.20/=.

That on 9/8/1983 at Kisumu Police Station, “without reasonable cause failed to attend Tamaam Parade contrary to Regulation 3 sub regulation 20 of the Police Regulations”. He was fined Kshs.80/=.

That on 17/01/1984 at Kisumu Police Station “Negligently lost a Certificate of Appointment contrary to Regulation 3 sub regulation 720 of the Police Regulations”. He was fined Kshs.250/= and he was also to meet the cost of replacement.

That on 25/5/1987 at Homa Bay Police Station he was charged with “being disrespectful in words and acts to an officer senior to you in rank contrary to Regulation 3 sub regulation 7 of the Police Regulations.” He was fined Kshs.60/=.

That on 1/5/1988 at Kisii Police Station he was charged with, “breaking out of police lines contrary to Regulation 3 sub regulation 13 of the Police Regulations.” He was fined Kshs.100/= (Annexed and marked “MK1” is a copy of the Notice to Show Cause Letter dated 26th April, 1989 detailing the above charges).

A warning letter dated 11th November, 1988 was therefore served on him and he was subsequently removed due to his appalling record.

The Respondents further case is that the Petitioner was issued with a letter on 26th April, 1989 headed,Intended Removal from the Force Show Cause Letter(sic): to which he replied through a letter dated 10th May, 1989. On consideration of the Petitioner’s response to the show cause letter he was removed from the force. At this time, the Petitioner was on operation duties in North Eastern Province and was paid his pension on termination of service.

The Respondent agrees that there were demand notices from the Petitioner after his (Petitioner's) removal from service. She however avers and submits that a petition twenty-four (24) years down the line demonstrates that this is an afterthought and places the petitioner as guilty of laches. It is the respondents case that the Petitioner’s removal from the force was procedural and lawful as there was reasonable justification for the action taken against him. Further, the Petitioner has not demonstrated a violation of his rights to warrant remedies as prayed.

The issues for determination therefore are;

Was the termination of the employment of the petitioner wrongful, unfair and unlawful or even a breach and violation of his fundamental rights and freedoms.

Is the Petitioner entitled to the relief sought?

Who bears the costs of this cause?

The 1st issue for determination is whether the termination of the employment of the Petitioner was wrongful, unfair and unlawful or even a breach and violation of his fundamental rights and freedoms. A factual analysis of the case by the Petitioner is that he was enlisted as a Police Officer on 12th July, 1980 as Police Constable No. 38254. On 11th November, 1988, the Petitioner received a warning letter requiring that he desist from committing any further offences under the Police Force Standing Orders. He had by this time committed five (5) such offences, to wit, misdemeanors and had been punished for the same. Thereafter, he diligently continued discharging his duties and in early April, 1989 he was assigned duties in the Amanioperation in North Eastern Kenya. This lasted up to December, 1989 after which he continued with normal duties.

On 11th February, 1990 he received a letter dated 29th May, 1989 removing him from the force. On 12th February, 2009 he wrote an appeal against removal to the Commissioner of Police but did not receive a response and has not received any to date despite his numerous reminders.

The Petitioner at paragraph 12 of the Petition cited hereinbefore (page 2-3) contends that he had not committed any or further offence to warrant a removal and that his removal was all together irregular.

The Respondent’s position is that the Petitioner was removed due to an appalling record of service. That on the Provincial Police Officer Nyanza, initiating removal proceeding against the Petitioner, a letter dated 26th April, 1989 was done to him and he responded vide his (petitioner’s letter) of 10th May, 1989. On consideration of this response he was removed from the force on public interest with effect from 29th June, 1989. At this time, he was on an operation in North Eastern Province until 13th December, 1989 when he thereafter was served with the letter of removal. She deems the petitioner as guilty of laches having instituted these proceedings twenty-four (24) years after the event. She therefore opposed the petition and called for its dismissal with costs.

The Petitioner pleads a contravention of his fundamental rights and freedoms per Article 25, 41 and 43 of the constitution in that his removal from the force was without the force of law, unprocedural, without being afforded an opportunity to be heard and a total nullity. He denies being party to the proceedings leading to his removal or even being party to the alleged correspondence from him on the subject or even a receipt of the communication to remove him as alleged by the respondent.

The Petitioner amplifies his case and seeks to rely on the authority of the Constitution of Kenya, 2010 as follows;

Article 25;

“Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—

Article 41;

(1) Every person has the right to fair labour practices.

(2) Every worker has the right—

(a) to fair remuneration;

(b) to reasonable working conditions;

(d) to go on strike.

(3) Every employer has the right—

(e) to form and join an employers organisation; and

(f) to participate in the activities and programmes of an employers organisation.

(4) Every trade union and every employers’ organisation has the right—

(a) to determine its own administration, programmes and activities;

(b) to organise; and

Article 43;

43. (1) Every person has the right—

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;

(b) to accessible and adequate housing, and to reasonable standards of sanitation;

(d) to clean and safe water in adequate quantities;

(e) to social security; and

(f) to education.

(2) A person shall not be denied emergency medical treatment.

(3) The State shall provide appropriate social security to persons who are unable to support themselves and their dependants.

I agree with the Petitioner on his reliance on the constitution to propel his case. Article 25 clearly establishes situations where certain fundamental rights and freedoms may not be limited and in the instance case the Petitioner relies on sub- article (c) – the right to a fair trial. It is no doubt that in all aspects of this case, the petitioner was denied this basic right.

The opener to Article 41 of the Constitution spells out the Petitioner’s claimer to his fundamental rights in labour relations, the right to fair labour practices as enshrined under Article 41 (1. )

The Petitioner pleads violation of his social and economic rights as provided for under Article 43 of the Constitution. He submits as follows;

“The Petitioner’s constitutional rights have envisaged in Article 43 of the Constitution of Kenya, 2010 has been grossly violated by the respondent. By the respondent’s action of removing the petitioner from the force, the petitioner had been denied a source of earning to live a full and decent life because of lack of the job of the police force he most loved. He has consequently suffered from lack of money and financial constraints and/or resources to have a better standard of health. Attached is the petitioner’s photographs while he was in the force and also his current photograph. He and his family suffered for lack of access to reasonable housing and reasonable sanitation.

He and his family have lived in poverty, hunger and with lack of adequate food, security, quality education etc. All this has been occasioned by the respondent’s malicious action.

Secondly the respondent’s action of removing the petitioner from the force without cause of justification has reduced the reputation of the petitioner in the minds of right thinking members of society because he cannot explain why he is not in the police force or why his appeal has not been heard for 25 years. He cannot seek reasonable employment because of this.”

I agree with the lamentations of the Petitioner and observe that his removal from the Police Force and employment enormously affected his life, particularly his way of life and access to economic and social rights as enshrined under Article 43 afore cited. For all this time, the Petitioner underwent the pangs of deprivation, poverty and sufferedom for no fault of his own. It is my thesis that in a democracy and rule of law situation, rights as stipulated by the law and constitution and human rights as these are universally acknowledged are a must for all.

I fear that it shall be argued that the petitioner’s claim to a violation of the fundamental rights is overtaken by the fact that at the time of his removal and therefore violation, the Constitution of Kenya, 2010 was not in place, the same having been promulgated on 27th August, 2010. I disagree. Conventionally, it is agreed that the basic ingredients of human rights are that these are inherent, inviolable and inalienable. This being the situation and the same conferring the universality and quality of human rights, such an argument would fall by the wayside. Human rights require no qualification. These are indefatigable and irreducible. They confer to us all by virtue of our humanity. These do not beg for form, or at all. They are everlasting, indisoluble, and non-negotiable.

Again, it is clear that this violation of the petitioner’s rights continued for twenty-six (26) years from the time repealed constitution to the present. Our independence constitution also had a bill of rights which has now been improved and amplified by the current constitution. It is all a follow up of one to the other. The Bill of Rights as constituted under Chapter 4 of the constitution is only an amplification of the one brought in by the independence constitution. This again diminishes any argument against the application of the bill of rights in the present scenario.

This cause of action arose in 1989 and therefore the law applicable is the repealed Trade Disputes Act and Employment Act, Chapter 234 and 226, Laws of Kenya respectively. Section 15 (1) of the Act provides as follows;

“In any case where the Industrial Court determines that an employee has been wrongfully dismissed by this employer, the Court may order that employer to reinstate that employee in his former employment, and the Court may, in addition to or instead of making an order for reinstatement, award compensation for the employee;

Provided that such compensation shall not exceed-

(i) in a case where reinstatement is ordered, the actual pecuniary loss suffered by the employee as the result of the wrongful dismissal;

(ii) in any other case, twelve months monetary wages.

This transitional practice is incepted into our system by Section 84 of the Labour Relations Act, 2007 which guides us on such practices thus;

“Section 84 (1) The Trade Union's Act and the Trade Disputes Acts are repealed.

(2) Transitional provisions dealing with the transition from the Trade Unions Act and the Trade Disputes Act to this Act are contained in the Fifth Schedule.”

The Fifth Schedule referred to above at Paragraph 4 schedule brings in the matter home as follows;

(4). “Where any of the following matters commenced before the commencement of this Act, the matters shall be determined in accordance with the provisions of the Trade Disputes Act (now repealed).

(a) any trade dispute that arose before the commencement of this Act;

(b) any trade dispute referred to the Industrial Court before the commencement of this Act;

(d) any summary dismissal that took place before the commencement of this Act;

Paragraph 4 (a) and (d) have a bearing on the issues in dispute in this cause. It is therefore the case here that a case for compensation and relief should follow this cause.

This matter from the onset stinks of lethargy on the part of the respondent. It is an illustration of decay in the operations of government. This is unfortunate. The petitioner clearly brings out a case of irregular, unlawful and unprocedural removal but the respondent stands his ground that this was proper. Despite a denial by the petitioner of participation in the proceedings for removal or even being heard on his appeal against such removal, the respondent does not controvert the factual basis of the case of the petitioner. He does not address or deny the evidence adduced by the petitioner.

The petitioner sought to rely on the authority of MARY CHEPNGENO KIPTUI VS KENYA PIPELINE CO. LTD (2014) where it was observed that;

“It was not pleaded or adduced in evidence as to the process employed by the respondent to arrive at this public interest reason of termination. The respondent has not claimed to have given notice or accorded the claimant the right to be heard before the issuance of the letter dated 29th June, 2012. This is absurd as the very purpose of due process, natural justice and fair labour practices now demand that before a termination, even in a case where the employer is ready and willing to pay lieu of notice, a hearing must be conducted where an employee is given a fair chance to defend self in the presence of a union representative and if not unionized, in the party to an employment relationship must respect. This right was expoused in detail by this court in the case of ELIZABETH WASHEKE and others versus Airtel (K) Ltd and another Cause No.1972 of 2012. Section 41 of the Employment Act is mandatory as outlined above.”

The Petitioner further sought to rely on the following positions of the Constitution of Kenya, 2010;

Article 47 (1) of the Constitution of Kenya, 2010;

“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

Article 50(1) of the Constitution of Kenya, 2010;

“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

These again are relevant and illustrative of the violation of the Petitioner’s rights.

Again, the Petitioner sought to rely on the following authorities in support of his submissions and case;

ABBOT VS SULLIVAN (1952) 1KB 189where it was observed as follows;

“......Bodies which exercise monopoly in important sphere of human activity with power of depriving a man of his livelihood must act in accordance with elementary rules of natural justice. They must not condemn a man without giving an opportunity to be heard in his own defence and any agreement or practice to the contrary would be invalid.”

and PAPER PRINTING WOOD AND ALLIED WORKERS UNION VS GLASS AND ALUMINIUM 2000 CC (2005)10 BLLR 989 (LC) PARA 137Nicholson JA illustrated a case of unfair dismissal as hereunder;

“... strikes at the essence of the values which form the foundations of our new democratic society as enunciated in the constitution. It is a dismissal that undermines the fundamental values that the labour relations community in our country depends on to regulate its very existence. Accordingly such a dismissal deserves to be dealt with in a manner that gives due weight to the seriousness of the unfairness to which the employee so dismissed has been subjected...Accordingly there must be a punitive element in the consideration of compensation.”

I therefore find that the termination of the employment of the Petitioner was wrongful, unfair and unlawful and a gross and flagrant contravention, abuse and violation of his fundamental rights and freedoms as outlined in the constitution then and particularly now.

The 2nd issue for determination is whether the Petitioner is entitled to the relief sought. The petitioner has been out of employment for the last twenty-six (26) years for no fault of his own. A finding of unlawful termination of employment leads to one to entitlement to the relief sought. However, as has been argued and submitted by the respondent, the situation may be different in the circumstances. The circumstances of termination arise in the police force which is a disciplined force for all intents and purposes. This may call for different measures in arriving at a case for redress for unlawful termination of employment. As reasoned and demonstrated in the authorities here below, reinstatement of employees destabilized by unlawful termination, especially if the absence of service is elongated may not be a justifiable solution on grounds of public interest. This is supported by the authorities cited by the respondent as follows;

CIVIL CASE NO.1 OF 2007 JOSEPH WAMBUGU KIMENJU VERSUS THE ATTORNEY GENERAL (eKLR)the Judge stated that;

“the plaintiff in this case was a police officer, hence a member of the disciplined forces. The nature of service is such that high standards of discipline are demanded”.

JOSEPH WENDA MBUKO VERSUS THE PROVINCIAL POLICE OFFICER CENTRAL & 2 OTHERS 2013 (eKLR)where the court stated that;

“I believe it is not the law that one be paid for services not rendered. I hold the parties should always understand even in Constitutional matters, claim for monetary compensation should be supported by evidence with specific figures to guide the court in determining the sum due or awardable to the petitioner.”

The petitioner lay on wait for twenty-six (26) years for a decision on his fate. All these time he was disabled from a decent livelihood due to the careless and malevolent actions of the 1st respondent. The authority in JOSEPH WENDA MBUKO VERSUS THE PROVINCIAL POLICE OFFICER CENTRAL & 2 OTHERS 2013 (eKLR) where the court observes that there should be no pay for work not done is, with due respect, curious. It pursues a common law position which our courts have partnered with for a long time. It is now time to scrutinize the position of the common law and its application to our conditions and circumstances. In this jurisdiction, impunity reigns. Like in the instance case, we always find ourselves in situations where those in authority without care or thought short circuit an employee's employment without batting an eyelid. This to us is fashionable and by any means agreeable. Would we then deny this kind of deprived employee suitable remedy on the guise of the common law’s analogy of no work done? I beg to differ. Compensation should encapsulate the circumstances of the case in order to incept fairness and justice.

Again, it must be appreciated courts have only been shy to appropriately apply common law principles in the circumstances of our case. Section 3(1) of the Judicature Act Chapter 8, Laws of Kenya awards all empowerment but we are reluctant to appreciate its broadness and award society of its liberties as embraced and provided by the law.

Judicature Act (Chapter 8);

3 (1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with-

the constitution

Subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule.

(c) Subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date; but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

The common law has not been static. The common law environment, like ours has embraced immense dynamist. The constitution of Kenya, 2010 is an indication of the far we have trodden. The Act as above cited does not call for blind application.

Again, the authority of PAPER PRINTING WOOD AND ALLIED WORKERS UNION VS GLASS AND ALUMINIUM 2000 CC (2005)10 BLLR 989 (LC) PARA 137 afore cited brings in an element of punitive in the consideration of compensation.

“Accordingly such a dismissal deserves to be dealt with in a manner that gives due weight to the seriousness of the unfairness to which the employee so dismissed has been subjected...Accordingly there must be a punitive element in the consideration of compensation.”

I agree. It requires unmitigated conservatism to ignore this new thinking in Employment and Industrial Relations. Otherwise, how would we allow situations where careers and livelihoods are destroyed entirely due to the sadistic tendencies of an employer or her agencies. How would we accommodate situations where employment contracts are terminated to settle personal scores and vendetta. How do we deal with impunity at the workplace? The South Africa solutions as enunciated in the authority above offers the solution; a punitive element in the consideration of compensation.

Would reinstatement be appropriate in the circumstances of an officer who has been twenty six (26) years out of service and is fifty four (54) years, six years to the age of retirement? This may not be suitable in the situation of such a disciplined service. In his submissions, the Petitioner changes tune and pleads for Kshs.4,500,000. 00 being accumulated salaries for twenty six years at an averaged rate of Kshs.15,000. 00 per month (taking into account expected promotions had he been in employment) and Kshs.10,000,000. 00 being exemplary damages.

This is an appropriate situation where courts are called upon to come up with primal solutions to emerging trends in industrial relations dispute resolution mechanisms. Here, a middle course is applicable and I prefer to adopt the new found concept of partial reinstatement. This is a situation where reinstatement, bearing in mind the circumstances of the case is abridged so as to ebb out a case for justice. The employee comes out clean as the employer is also awarded her peace of mind in the absence of the employee. Public interest takes a leap and the utmost benefit and value in the circumstances. It is a win-win situation for all.

It is not in dispute that the claimants employment was terminated under circumstances that were in contravention of the repealed Employment Act aforesaid and also against the rules of natural justice in that he was not afforded a hearing on account of his termination. Attempts to seek audience on his appeal against termination strictly fell on deaf ears. This, as observed earlier, was an affront to the fundamental rights and freedoms of the petitioner and therefore calls for compensation and appropriate remedies. I therefore find that the petitioner is entitled to relief in the circumstances. I feel inclined to remedy this sad situation and award the Petitioner relief. I therefore declare an order as follows;

That a declaration be and is hereby made that the 1st Respondent's decision to remove the Petitioner from the Police Force without cause and without a fair hearing violates or infringes on the Petitioner's fundamental rights and freedoms and is therefore null and void.

That a declaration be and is hereby made that termination of the petitioner’s employment as police officer was wrongful, unfair and unlawful.

That the petitioner be and is hereby placed on partial reinstatement from the date of termination of employment up to and including the date of this judgment of court.

That the 1st respondent be and is hereby ordered to pay the petitioner his salaries and emoluments computed for all the period of lost service occasioned by the unlawful termination of the employment of the petitioner.

That the computation of salaries and emoluments payable to the petitioner for the period of lost service shall take into account all pay rises and annual incremental amounts that would have been payable to the Petitioner had he continued in service.

That the petitioner be and is hereby awarded twelve (12) months’ salary at the current salary for his designation and rank (police constable) as compensation for unlawful termination.

That the petitioner be and is hereby deemed to have served without a break in service as a police officer of the Republic of Kenya from the respective date of appointment and is also deemed to have retired from such service under the fifty (50) year rule with effect from this date of judgment, 4th June, 2015 with full pension benefits to be paid in accordance with the rates as provided for in the Pensions Act and regulations.

That the operative remuneration and salary for the Petitioner for purposes of computing his pensionable dues and pension shall be the current salary payable for his designation and rank (police constable.)

That the petitioner be and is hereby awarded Kshs. two million only (2,000,000. 00) being exemplary damages.

That the petitioner be and is hereby ordered to compute his dues payable under order Nos. (iv) and (v) above and furnish the amount payable to court within forty-five (45) days of these orders of court.

The 1st respondent be and is hereby ordered to facilitate a computation of the petitioner’s dues under order no.(x) above without failure.

That all amounts and payments payable to the petitioner under these orders of court shall attract interest at court rates thirty (30) days from the date of this judgment or when they fall due or are so declared by this court.

That the cost of this petition shall be borne by the 1st respondent.

Mention on 22nd July, 2015 at 900 hours for a verification of the computation of salary due and other directions of court.

Delivered, dated and signed this 4th day of June 2015.

D.K.Njagi Marete

JUDGE

Appearances

Mr. Meroka instructed by Meroka & Company Advocates for the Petitioner.

Janet Lang'at instructed by the state law office for the Respondent.