Court stops officer's bid to return to police service
The NPSC said Mr Osoro resigned voluntarily and his employment contract was effectively closed upon his resignation in February 2014.
A police officer who resigned eight years ago has suffered a setback after his bid to be reinstated was halted by a court.
The Employment and Labour Relations Court in Malindi struck out the case by Mr Moses Osoro, who had sued the National Police Service Commission (NPSC) and the Attorney-General, saying it was an abuse of the court process.
Justice Bernard Manani ruled that though the petition was not affected by various statutes of limitations, it was barred by the common law doctrine of laches (lacking diligence in seeking a claim).
The judge also ruled that although proceedings to enforce constitutional rights may not be defeated by reference to provisions of statutes raising time limits on filing court cases, they are affected by the common law concept of laches.
“The petitioner must invoke the court’s jurisdiction to protect his rights in a manner that exhibits diligence on his part,” said Justice Manani.
Abandoned his right
Justice Manani also noted that if there is undue delay in instituting a claim to protect one’s rights, there is a risk the defendant may think that the claimant has abandoned his right.
“Fairness dictates that all claims for enforcement of rights ought to be prosecuted with some measure of promptness and diligence. It is for this reason that the court may find that although a constitutional petition is not time-barred, the delay in presenting it amounts to abuse of the court process,” said Justice Manani.
He also noted that even though the petition was yet to be fully litigated, his preliminary assessment of the filed documents suggested that parties interacted over the issue of resignation between February and June 2014.
“The law on resignation is that it takes effect immediately. It is tendered unless it is expressed to take effect at a later date,” said Justice Manani.
The court heard that Mr Osoro was a police officer until February 5 2014, when he requested to be released from the service on account of ill health. But he later changed his mind and sought to be allowed to resume duty.
Mr Osoro wanted the court to declare that he was still an employee of the NPSC and was entitled to resume duty, be paid all his salary and other emoluments from March 2014 to the date he resumes duty.
Constitutional rights
He also sought an order that the NPSC’s failure to clarify his employment status violated his constitutional rights and should pay him general and special damages.
He argued that although he tendered his resignation, the NPSC never responded to his request and thus the resignation never took effect and he remained its employee.
For its part, the NSPC told the court that the petitioner’s resignation letter was received and processed and that he even paid his salary to the agency in lieu of notice, because he wanted the resignation to take effect immediately.
The NPSC said Mr Osoro resigned voluntarily and his employment contract was effectively closed upon his resignation in February 2014.
The respondents had also filed a preliminary objection to the petition, arguing that it was time-barred and an abuse of the court process.
