An office employee receiving dismissal notice at workplace.
A former government accountant attached to the Kenya Police Service has lost his bid to overturn his dismissal and recover years of unpaid salary after the Employment and Labour Relations Court ruled that although the disciplinary process leading to his dismissal was procedurally unfair, he waited too long to seek legal redress.
In a judgment delivered on June 25, the court dismissed a petition filed by Patrick Sifuna Kinisu, saying the claim had been brought nearly nine years after the cause of action arose, well outside the statutory limitation period for employment disputes.
Kinisu had sued the National Police Service Commission (NPSC), the Inspector General of Police, the Deputy Inspector General of the Kenya Police Service and the Attorney-General, arguing that his dismissal violated his constitutional rights to fair labour practices, fair administrative action and human dignity.
He sought declarations that his dismissal was unconstitutional, unlawful and void, payment of salary and allowances from May 2016 until his retirement in January 2022, retirement benefits, compensation for unlawful termination, general and special damages, interest and costs.
According to court records, Kinisu joined the public service in October 1985 as an Accounts Assistant in the Ministry of Cooperative Development before rising through the ranks to Grade I, Job Group K. He later transferred to the Ministry of Internal Security and Provincial Administration and was eventually deployed to the Kenya Police Service.
The dispute arose in February 2016 when he received a deployment letter transferring him from the Kenya Police College in Kiganjo to Kenya Police Headquarters at Vigilance House in Nairobi.
The deployment required him to report by March 30, 2016, but he instead reported on April 5 after presenting a sick sheet explaining his delayed reporting. Kinisu told the court that upon arrival, the head of the accounting unit informed him that office space had not yet been prepared and verbally instructed him to remain at home until he was contacted and assigned duties.
He said the promised communication never came.
Instead, his salary was stopped in May 2016 without explanation.
The petitioner testified that repeated attempts to establish why his salary had been suspended were unsuccessful. The financial hardship, he said, plunged him into severe depression, forcing him to return to his rural home in Bungoma where he sold family assets to support his family. He further told the court that his wife became ill while his daughter was forced to discontinue her university education because of financial constraints.
Kinisu said that in 2019 he met another police officer who informed him that he was being sought by his employer. He travelled to Nairobi only to be told that his employment file could not be traced and that he should continue waiting.
When he returned in January 2020, he was allegedly informed that his file had been forwarded to the National Police Service Commission and was verbally told that he had already been dismissed from service. He lodged an appeal in February 2020 but received no immediate response. After writing reminder letters, he eventually sought the intervention of the Commission on Administrative Justice in 2024. It was only then that he learnt his appeal had been rejected and that he had been dismissed for allegedly absconding duty.
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In court, Kinisu argued that he had never deserted duty and maintained that the disciplinary process was fundamentally flawed because the notice to show cause was sent to the wrong postal address and through the Kenya Police College after he had already been transferred to Nairobi. He also argued that the National Police Service Commission lacked jurisdiction to discipline him because he was a civilian public servant employed through the Public Service Commission rather than a police officer.
The National Police Service Commission rejected those claims.
It maintained that Kinisu failed to resume duty after leave, was issued with a notice to show cause dated July 5, 2016, underwent disciplinary proceedings and was lawfully dismissed. The Commission further argued that he was afforded an opportunity to be heard and that summary dismissal was justified because he had absconded duty.
The court found that Kinisu could not rely on the alleged verbal instructions to remain at home because employment communication within government is ordinarily made through written correspondence.
The judge observed that public officers are deployed, transferred and assigned duties through formal written communication and that verbal instructions could not absolve an employee from reporting to work.
However, the court also found significant flaws in the disciplinary process undertaken by the employer and held that the notice to show cause had been served through the Kenya Police College even though Kinisu had already been deployed to Police Headquarters in Nairobi. Since he had left Kiganjo, the court held, he could not reasonably have been expected to receive or respond to the notice.
The judge concluded that because the disciplinary notice never reached him, the disciplinary proceedings and the eventual dismissal failed to satisfy the procedural fairness requirements under Sections 41, 44 and 45 of the Employment Act and were therefore procedurally defective.
Despite those findings, the court declined to grant Kinisu any relief.
The judge ruled that employment disputes must be filed within three years as required by the Employment Act and that filing a constitutional petition could not be used to circumvent the statutory limitation period.
The judge noted that after his salary was stopped in 2016, Kinisu took no effective legal action until filing the petition in 2025, approximately nine years later.
The court further observed that employers are legally required to retain employment records for only five years, meaning that stale claims prejudice both employers and the administration of justice.
"Waiting nine years to file a petition instead of a memorandum of claim is an abuse of the court process," the judge held.
Consequently, the court dismissed the petition.
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