The Employment and Labour Relations Court in Nairobi has ruled that the dismissal of former GSU constable Andrew Kyalo Mwanza was unconstitutional, awarding him terminal dues despite his misconduct.

In a judgment, Justice Hellen Wasilwa held that the National Police Service Commission (NPSC) violated Kyalo’s rights when it dismissed him in July 2021 over a drunken shooting incident.

The judge found that the orderly-room proceedings were rushed, unprocedural, and conducted without giving the officer sufficient time to prepare his defence. She further noted that the respondents failed to produce a valid hearing notice or written reasons for waiving the statutory notice period.

“This breached Articles 28 (human dignity), 41 (fair labour practices) and 50(2) (right to a fair hearing) of the Constitution,” Justice Wasilwa ruled.

Kyalo had been accused of firing six rounds from his service G3 rifle at Huruma Shopping Centre, Cheptais, on January 4, 2021, while intoxicated, and of issuing threats linked to his then girlfriend. He was disarmed, served with a show-cause letter the next day, and immediately taken before a Subordinate Disciplinary Committee.

Although the court acknowledged his admission to discharging the firearm under the influence of alcohol, Justice Wasilwa emphasised that even admitted misconduct must be handled through a fair and transparent process.

“In view of the offence the petitioner was subjected to and in which he admitted committing under the influence of alcohol, I direct that he be paid all his terminal dues from the date of removal from employment to the date of this judgment,” the court ruled.

The court declined to reinstate him but directed that he be paid all terminal benefits from the date of his dismissal to the date of judgment, in addition to costs.

Mwanzia, through lawyer Sophie Nekesa, had told the court that the respondents treated him as a guilt person and that he was not given a fair trial.

The respondent in the case argued that the petitioner unlawfully discharged a weapon without a reasonable lawful cause and used a threatening language to a police officer senior to him. However, the officer, in his defence, confirmed that the words were unfortunate.

“He uttered that he wanted to kill his girlfriend, pronouncements which were unfortunate and not intended,” Lawyer Nekesa for the petitioner submitted.