REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E086 OF 2026
(Before Hon. Justice Dr. Jacob Gakeri)
WYCLIFFE MOSETI NYASIMI…………………………..…. PETITIONER
VERSUS
NATIONAL POLICE SERVICE COMMISSION ….……. RESPONDENT
JUDGMENT
The Petitioner instituted the instant Petition dated 12th March, 2026 on even date alleging that his constitutional rights had been violated by the Respondent. The Petition was filed together with a Notice of Motion of even date seeking various reliefs but was withdrawn on 15th April, 2026.
The Petitioner identified Articles 2(1) (2) and (4), 3(1), 10, 19(1), 20(1) and (2) and (3) 21(1), 22(1), 23(3), 25, 28, 41(1), 47(1) and (2), 50(1) and (2) 162, 258(1) and (2) of the Constitution of Kenya and Sections 4 of the Fair Administrative Action Act as well as Section 89 (3) of the National Police Service Act and Regulations 11 and 22 of the National Police Service Commission (Discipline) Regulations as the legal foundation of the Petition.
The Petitioner’s case is that he was recruited into the Administration Police Service in April 2001 and was deployed to the Rural Border Patrol Unit (RBPU) in North Eastern Kenya and served in Amuma and Elwak and acted as a catechist in the Catholic Church.
That his salary was abruptly stopped in September, 2013, without notice justification or due process and was subsequently dismissed from employment vide letter dated 24th February 2014 after disciplinary proceedings wee conducted in his absence and on appeal to the National Police Service Commission he appeared before the County Appeals Board at Kanyonyo made oral submissions and a reinstatement was recommended the Police Headquarters upheld it but the National Police Service Commission upheld the dismissal vide letter dated 11th June 2025.
According to the Petitioner, the Respondent violated his constitutional right to fair labour practices and fair administrative action.
The Petitioner prays for:
(i) A Declaration that the Petitioner’s rights and fundamental freedoms were violated.
(ii) An Order of certiorari to quash the entire proceedings and decision of the Respondent dismissing the Petitioner from the Administration Police Service.
(iii) An Order of Mandamus directed to the Respondent to reinstate the Petitioner to the Administration Police Service without loss of benefits, rank or position.
(iv) An Order of reinstatement of all privileges including accrued salary, allowances and any entitlements.
(v) Compensation for violation of his rights and fundamental freedoms.
(vi) Costs of this petition.
(vii) Any other relief that this Honourable court may deem just to grant.
Respondent’s Case
Vide a Replying Affidavit sworn on 10th June in opposition to the petition Peter Leley, the Chief Executive Officer of the National Police Service Commission deponed that on 31st March, 2013, the Petitioner was granted seven (7) days leave to attend to a domestic issue and was expected to resume duty on 6th April 2013 but did not and absented himself from service for forty two (42) days without leave or lawful cause and efforts to trace him through his mobile number and his home area through official signals were unsuccessful.
That signals dated 5th May 2013 and 5th July 2013 to Nyamira County yielded no response and as a consequence Orderly Roomproceedings were conducted at Elwak Border Patrol Unit for the offence of desertion.
The affiant further deponed that the Petitioner did not report back and salary was stopped in September 2013 and was chased away when he attempted to report back.
That the Petitioner was, as per the standing orders required to report the illness or indisposition to his immediate command by reporting to the nearest Police Station and was dismissed from service effective 14th March, 2014.
That the Petitioner appealed to the National Police Service Commission vide letter dated 5th February 2015 but did not attach any documentary evidence and the Commission had to request for his personal file from the Deputy Inspector General of Police together with comments and recommendations subsequent to which an investigation was conducted.
That the medical records annexed to the letter of appeal showed that the Petitioner sought medical attention about one (1) month after the date of expected resumption of duty and the documents from Prime Leks Hospital had variances in the dates and did not cover the entire period and on further inquiry, Prime Leks Health Services Ltd confirmed that the documents did not originate from it.
That the Commission found no merit in the appeal and communicated its decision vide a letter dated 16th June 2025.
The affiant further deponed that the disciplinary action against the Petitioner was lawful, procedural and proportionate and the Respondent did not violate his constitutional rights.
Petitioner’s Submissions
As to whether the disciplinary process leading to the Petitioner’s dismissal violated his right to fair labour practices, counsel submitted that the disciplinary process fell short of the Constitutional and Statutory threshold on fair labour practices in that no notice to show cause was issued setting out the allegation and thus could not respond to the accusation of desertion and notice of the disciplinary hearing was not served as per Regulation 11 and the Petitioner was condemned unheard as the requisite safeguards were not observed. Reliance was placed on Article 236 of the Constitution of Kenya to urge that the dismissal was substantively procedurally unfair.
As to whether the administrative process was expeditious, efficient, lawful and reasonable reliance was placed on Article 47 of the Constitution of Kenya to submit that the process leading to the Petitioners dismissal was characterized by procedural impropriety and administrative unfairness as the petitioner was not informed of the date, time and venue of the disciplinary hearing.
Reliance was placed on the sentiments of Odunga J (as he then was) in Immanuel Masinde Okutoyo & other v National Police Service Commission Pet No. 60 of 2014 on availment of allegations to the employee in good time.
Further reliance was placed on the decisions in Emmanuel Nyiro Chai v National Police Commission & 3 others (2017) eKLR on natural justice and effect of violation and Ernst & Yong v Capital Markets Authority & another (2017) eKLR on the essence of natural justice to urge that the Respondent failed to provide the Petitioner with written reasons for the decision dated 16th June, 2025.
Reliance was also placed on the sentiments of the court in Joseph Mwenda Mbuko v Provincial Police Officer & 2 others (2013) eKLR on due process and compliance with the law and standing orders of the Police Service as well as Edwin Kosgei Kibor & another v Inspector General of Police & 3 others (2018) eKLR to reinforce the submission.
Counsel submitted the Respondent’s actions were neither expeditious or lawful, reasonable nor procedurally fair.
Concerning the right to fair hearing, reliance was placed on Article 50 (1) of the Constitution of Kenya and section 89 of the National Police Service Act to urge that the disciplinary process against the Petitioner undermined the provision of section 89 of the Act as the Petitioner was not informed of the process or the allegations.
That the delay in concluding the appeal negated the provisions of the Constitution of Kenya as held in Charles Kiranga Anumba v National Police Service Commission (2015) eKLR and impeded the Petitioner’s right to be heard.
On reliefs, counsel urged that the petitioner was entitled to the reliefs prayed for an account of violation of his constitutional rights, citing the provisions of Section 12 (3) of the Employment and Labour Relations Court Act on reinstatement to urge that the reliefs was apt in the circumstances.
Respondent’s Submissions
On procedural fairness of the disciplinary proceedings, counsel relied on facts of the case and Regulation 12 of the National Police Service Commission (Discipline) Regulations to submit that the Petitioner’s failure to resume duty and failure to justify absence on grounds of illness rendered him liable to disciplinary proceedings.
Reliance was placed on the decision in Kenya Revenue Authority v Menginya Salim Murgani (2010) eKLR for the proposition that an employee cannot rely on circumstances within her/his knowledge which were never disclosed to the employer to urge that the Petitioner failed to notify his superiors of his alleged illness and it could not justify his long absence and was considered a deserter under Section 84 of the National Police Service Act.
Reliance was further placed on the decisions in Omutere v National Police Service Commission & 2 others Petition No. E137 of 2025, on desertion Freight in Tine v Rosebell Wambui Munene on absenteeism, Judicial Service Commission v Gladys Boss Sholei to submit that procedural fairness depended on facts of the case and a person who fails or refuses to participate in a process cannot complain of having been denied the right to be heard, and fairness was a two-way process. Counsel urged that the Petitioner was a Police Officer of about 14 years and well versed with the Standing Orders and was dismissed from service on 14th March 2014 on account of desertion.
Counsel submitted that owing to the absence of annexutes to the appeal, the Respondent took requisite steps to secure relevant records to ensure fairness in the determination of the appeal and did not delay the process deliberately.
Reliance was placed on the decision in Ethics and Anti-Corruption Commission & Another v Ojienda & others Petition No. 3083 of 2019 on the import of Article 47 of the Constitution of Kenya to urge that the delay was occasioned by the need to uphold natural justice.
That although the petitioner alleged to have been attended to at Prime Leks Hospital the documents did not demonstrate continuous attendance to justify the alleged sickness and the hospital disowned them on inquiry by the Respondent.
That the appeals and Legal Affair Unit considered and disallowed the appeal on 11th June 2015 and the petitioner was notified vide letter dated 16th June 2015 through his registered post.
Counsel urged that reliance on forged documents by the Petitioner implicated the Petitioner’s integrity and accountability and thus, he had approached the court with unclean hands.
Reliance was further placed on the decision in Kinyanjui Kamau v George Kamau on the effect of fraud and forgery when proven as well as the decisions in Fadhil Juma Kisua v Kenya Ports Authority (2016) eKLR, Walter Nyamweya Nyairo v Narok University College (2013) eKLR and Akaranga & 5 others v Parliamentary Service Commission & 3 others on forged certificates, to urge that the Petitioner was dishonest and fraudulent by relying on forged documents and thus guilty of gross misconduct.
Counsel submitted that the alleged County Appeals Board decision, which allegedly recommended the Petitioner’s reinstatement was not availed.
Counsel further urged that by dint of Article 232 of the Constitution of Kenya, integrity was the cornerstone of policing and dishonesty eroded confidence in the service.
As to whether the Petitioner’s constitutional rights were violated, reliance was placed on the sentiments of the court in Susan Waithera Kariuki & 4 others v Town Clerk Nairobi City Council & others (2013) KLR 1272 and Meme v Republic & another (2004) eKLR on the minimum a Petitioner ought to provide where violation of rights is alleged namely; provisions allegedly violated or infringed, manner in which they were violated and the relevant facts, to urge that the Petitioner’s rights were not violated as the disciplinary process was conducted in accord with the law and the Petitioner exercised the right of appeal and he failed to establish any illegality, irrationality or procedural impropriety and no violation of constitutional rights was proved.
Counsel, further submitted that the Petitioner’s allegations against the Respondent were misconceived and lacking in merit citing the sentiments of the court in Fremar Construction Co. Ltd v Minakshi Navin Singh CA No. 85 of 2002 and Trust Bank Ltd Amin Company Ltd & another (200) KLR 164.
On entitlement to reliefs, counsel submitted that none was merited because the Respondent acted lawfully, fairly and procedurally and in accord with the Constitution and relevant Acts of Parliament.
Analysis and determination
The facts of this case are largely uncontested. It is common ground that the petitioner joined the Administration Police Service effective 9th April 2001 as a constable and served diligently until 24th February 2014 when his employment was terminated for desertion. It is equally not in contest that the petitioner appealed the decision as advised by the letter but did not receive an outcome until 16th June 2025, when the decision was communicated.
The only contested aspect of the factual matrix relates to the appeal where the petitioner alleged that the County Appeals Board recommended reinstatement which was upheld at Jogoo House but rejected by the National Police Service Commission.
It is unclear to the court what reference to Jogoo House meant and as submitted by the Respondent’s Counsel the alleged recommendation for reinstatement and upholding at Jogoo House was not evidentiary demonstrated.
It is trite law that he who asserts any matter shoulders the burden of proof as ordained by the provisions of Section 107 of the Evidence Act thus:
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he assets must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
Under Section 108 of the Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
In Macharia v Ndwiga (2017) KECA 290 (KLR) the Court of Appeal stated:
“The Legal burden is discharged by way of evidence with the opposing party having a corresponding duty of adducing evidence on rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of the trial depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.”
Having alleged that the County Appeals Board recommended his reinstatement and the recommendation was upheld at Jogoo House, the evidential burden lay on the Petitioner to prove that the facts existed. He failed to do so.
For contextual purposes, documentary evidence on record reveals that the Petitioner was accorded leave for seven (7) days effective 31st March 2013 allegedly to attend to a domestic issue and scheduled to report back on 6th April 2013 but did not owing to alleged illness.
By letter dated 16th September 2013, the Petitioner informed the Inspector General of Police National Police Service through the National Police Service Commission that he had been sick for the last four (4) months and while reporting back he was chased away.
First, the letter had no annexure as evidence of the alleged sickness or anything in support of the claims. Second, it is a report of historical facts and did not communicate when he attempted to resume duty and who chased him away.
Third, the letter was written after salary was discontinued, which appear to have destabilized the Petitioner’s comfort since 31st March 2013 more than five (5) months later.
The gravamen of this case is whether the Petitioner was accorded due process and the dismissal met the legal threshold.
It is trite law that for a termination of employment to pass must or it must have been substantively justifiable and procedural fair as held in Naima Khamis Voxford University Press (EA) Ltd (2017) eKLR. See also Walter, Ogal Anuro v Teachers Service Commission (2013) eKLR
As regards the reason for dismissal the provisions of the Employment Act are clear that the employer is required to demonstrate that it had a valid and fair reason relating to the employee’s conduct, capacity or compatibility or operational requirements of the employer.
Section 43 of the Employment Act Provides.
(1) In any claim arising out of termination of a contract the employer shall be required to prove the reason or reasons for the termination and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of section 45.
(2) The reason or reasons for termination of a contract are the matters that the employer at the time of termination of the contract genuinely believed to exist and which caused the employer to terminate the services of the employees.
In the instant case, the Petitioner admitted in writing that he had not been at the place of work for four (4) months prior to the letter dated 16th September 2013. In fact it was more than five (5) months from the date he was expected back.
For unexplained reasons the Petitioner did not care to inform the employer about the alleged sickness or indisposition at any time before the letter of complaint dated 16th September 2013.
To explain his long absence from duty, the Petitioner availed a letter dated 26th August 2013 allegedly from Prime Leks Health Service P.O Box 2220-00100 Nairobi stating that the Petitioner was attended to on 6th May 2013 and was admitted for 5 days for BP management. The letter does not state that there was any follow up after 5 days or any sick off.
A patient’s card of even date was also availed. Another card dated 8th July 2013 was also attached which shows that the Petitioner visited the facility twice and on each occasion, he secured a new patients card from the same person.
In sum, even assuming that the documents provided by the petitioners were authentic, they could not explain the petitioner’s absence from duty for 10 days let alone more than five (5) months.
Documentary evidence provided by the Respondent revealed that, at the Respondent’s instigation vide letter dated 10th July 2023 a Director of Prime-Leks Health Services Ltd confirmed vide letter dated 28th August 2021 that the documents availed by the Petitioner were not authentic, were falsified and no such person had been attended to at the facility for any condition as an in or outpatient.
The net effect of the foregoing is that the petitioner relied on forgeries to explain his sickness which amounted to dishonesty and lack of integrity as a public officer. It is sufficient evidence that the allege sickness was non-existent.
The evidence on record lay it bare that the Petitioner deserted the work place effective 6th April 2013 and did not resume duty.
Section 94 of the National Police Service Act provides inter alia.
(1) A Police Officer who absents himself from duty without leave or just cause for a period exceeding ten days shall unless the contrary is proved be considered to have deserted from the service.
Under Sub-section (3) of the Act, desertion is a criminal offence and the deserting officer in liable on conviction to summary dismissal or imprisonment for a term not exceeding two years.
Under Chapter 30 (6) (h) of the Standing Orders absence without leave is an offence against discipline for which a Police Officer may be sanctioned.
Under the provisions of section 44(4) (a) of the Employment Act, absence from the appointed place of performance of an employees work without leave or other lawful cause constitutes gross misconduct and warrants summary dismissal of the employee.
The Respondent has established beyond peradventure that the petitioner deserted duty from 6th April 2013 and had a valid and, thus fair reason to dismiss the Petitioner from employment.
To this extent, the Respondent acted in conformity with the provisions of the Constitution, National Police Service Act, attendant Regulations and the Employment Act.
On procedure, while the Petitioner’s counsel submitted that the petitioner was denied due process and under Article 236 of the Constitution of Kenya right to fair hearing and fair administrative action under Articles 50 (1) and 47 of the Constitution of Kenya, the Respondent’s Counsel submitted that the procedure employed was consistent with law and thus fair and none of the petitioner’s constitutional rights were violated.
Relatedly, and as submitted by the Respondent’s counsel, the instant Petition did not meet the threshold in Anarita Karimi Njeru v Republic (Supra) on the degree of precision, and in the courts view the suit ought to have been prosecuted as an ordinary claim.
Under the provisions of Section 45(2) (c) and 41 of the Employment Act, a termination of employment must be conducted in accordance with fair procedure. The provisions of Section 41 of the Act prescribe the tenets of procedural fairness.
However, in the case of the National Police Service, the Standing Orders and the attendant Regulations apply and all integrate the principles of natural justice; audi alteram Partem and nemo judex in causa sua.
Uncontroverted evidence on record revealed that when the Petitioner failed to return to the work place and could not be reached otherwise two (2) signals were sent to his home County of Nyamira that he be traced and informed to report on duty. The first signal was sent 5th May 2013 and another on 5th July 2013 and none yielded a response or resumption of duty. The signals clearly state that it was a last-ditch effort to have the Petitioner resume duty because other efforts had failed.
In the court assessment, the Respondent had expended reasonable efforts to have the Petitioner resume duty but he was not prepared to, which culminated in Orderly Room Proceedings at RBDU-Elwak on 19th May 2013 from 0930 hours and the Petitioner was absent having deserted duty.
The jurisprudence emerging from the Employment and Labour Relations court and the Court of Appeal on desertion or absconding of duty is that an employee who pleads desertion by an employer is required to prove that the employee the employees deserted the work place by availing credible evidence to prove that reasonable efforts were made to contact the employee to resume duty or explain where they were and a notice to show cause be issued to inform the employee that disciplinary action was being contemplated for the desertion.
In Romageco Kenya Ltd v Kisigwa (2026) 132 (KLR), the Court of Appeal held,
“It is insufficient for an employer to merely invoke the term ‘desertion’ without substantiating it through action and evidence ….. there was no proof of any attempt made by the appellant to reach out to the respondent…” “The critical consideration is that an employer invoking desertion as a defence to claim of unlawful termination must demonstrate tangible effort to reach out to the employee with the objective of notifying them that termination on this ground is under contemplation.”
Evidence on record reveals that after having failed to establish contact with the petitioner or a response from him the Respondent resorted to disciplinary proceedings to formalize the separation. Paragraph 33 of the National Police Service Standing Orders Provide.
Where an officer fails to attend a disciplinary hearing despite notification of the date, time and venue of the hearing the hearing may proceed in the absence of the officer and the presiding officer shall record the reasons for the accused officer’s absence.
The duty Corporal Hassan Kulane IP No. 1999151123 and duty Sergent Leonard Bukachi IP No. 199402909 testified that leave was granted effective 31st March 2013 for 7 days and the Petitioner did not resume duty and had not done so by 19th May 2013 or notified any of his superiors where he was as ordained by Chapter 9 of the 3 (1) Standing Order that;
An officer shall be responsible or accountable to the first line supervisor in charge of the assignment or incident.
The question that begs is whether the Petitioner’s right of fair hearing was impacted or infringed by the absence of a written notice to show cause as submitted by counsel for the Petitioner.
In the courts view, by the Respondent demonstrated that reasonable steps were taken to have the petitioner resume duty but all the efforts were unsuccessful, not even through police signal.
Having been in the Police force since 2001, the Petitioner was aware that he would be looked for but made himself unreacheable until his attempts to resume duty 5 months later hit a dead end.
Having deserted the work place voluntarily and rendering himself unreacheable, notwithstanding sustained efforts by the Respondent, the petitioner cannot contend that his constitutional rights were infringed when he was being paid for services not rendered and was not labouring under any sickness or incapacity.
On conclusion of the Orderly Room Proceedings, the presiding officers recommended dismissal and immediate stoppage of salary awaiting dismissal processes and dismissal followed vide letter dated 24th February 2014, dispatched through Commanding Officer RBPU.
It is evident that the Petitioner received the letter and appealed the dismissal vide letter dated 5th February 2015 almost one (1) year later.
The petitioner attributed his absence to sickness and had notified his immediate boss CPL Sore Buleti about the sickness.
The letter did not disclose when the information about the sickness was made known to CPL Sore Buleti and how.
It is not in dispute that the appellate process took inordinately long to conclude perhaps because two institutions were involved, availment of files took long and the Respondent conducted its own investigation to ascertain the factual situation and accord the Petitioner a fair appellate hearing. The petitioner’s personal file was requested for vide letter dated 9th May 2019 and the alleged medical Institution the Petitioner was attended to confirmed that the document did not come from the institution. Confirmation by the Hospital that the documents relied upon the petitioner were forged confirmed that the petitioner was deserter ab initio but intended to camouflage his conduct as indisposition.
Finally, the Respondent notified the petitioner the outcome of the appeal vide letter dated 16th June 2025 thereby concluding the internal disciplinary process.
In the court’s view, the procedure adopted by the Respondent in terminating the petitioner’s employment met the threshold of the provisions of the Employment Act.
Flowing from the foregoing it is the finding of the court that petitioner has failed to prove that his dismissal from employment on 24th February 2014 was vitiated by unlawfulness or violation of rights and fundamental freedoms.
Having found as above none of the reliefs prayed for is merited.
Consequently, the Petitioners petition dated 12th March 2026 lacks merit and it is accordingly dismissed.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 20TH JULY, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI – PET E086 OF 20262 OF 20 |