The Labour court on Friday quashed a decision made by the Directorate of Criminal Investigations to dismiss a police officer who had already been acquitted of defilement charges.
In the case, officer Collins Makokha through lawyer Danstan Omari had challenged his dismissal saying the court had acquitted him off the charges but the DCI dismissed him.
In his judgement, Justice Byrum Ongaya quashed the dismissal ruling that it was null and void.
“The declaration that the act of DCI in relieving Makokha off his duties is a breach of his constitutional rights under article 27(1), (2) and (3), 28, 41, 48 and 50 of the constitution of Kenya and that the same is null and void for all intent and purposes,” the court ruled.
Judge Ongaya further ordered the National Police Service Commission to reinstate Makokha to the DCI with full back payment and benefits due effective date of the impugned removal because his removal was unlawful, irregular and unjustifiable.
He noted that sole reason for the removal was because of the suspicion in the defilement case which he was acquitted and the interdiction because of the fatal shooting which the court also found him and his colleagues not culpable.
“In the face of the acquittal, it amounted to mental torture, cruel, inhuman and degrading treatment and punishment to nevertheless remove the petitioner from service in the manner it was done,” Judge Ongaya ruled.
He further ruled that it was unreasonable and unlawful to remove Makokha from service on account of the suspicion and allegation of defilement that was in the criminal case and for which he was acquitted.
The court said even though the offence of defilement that he was acquitted from was serious, he should be presumed innocent until the contrary is proved.
Makokha had told court that he was appointed in 1999 and worked for 23 years before being dismissed from police service.
While serving at DCI Mpeketoni office in 2020, he was accused of defiling a minor and he was arrested and charged then later he was acquitted after the complainant failed to appear in court
After being acquitted in 2021, Makokha who was on half pay because of interdiction received a letter to show cause why he should not be removed from the police service due to the defilement charge and another 2011 case where a suspect was fatally shot.
In his response, he explained that the defilement charges were dropped due the victim not showing up to testify and the police shooting case went to an inquest and the court found them not culpable for the murder.
However, he received a letter from the DCI removing him from service even though he had given his defence on the said two matters.
He claimed that he was never invited to or subjected to any disciplinary hearing neither was he accorded any hearing to respond to the allegations levelled against him.
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