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Court of AppealPartially AllowedCivil Appeal No. 1 of 2016· [2016] KECA 244 (KLR)

Stephen Munga v Minister For Interior & National Coordination & 3 others [2016] KECA 244 (KLR)

Court of Appeal of Kenya
14 October 2016
4,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal quashed a police fine because the officer was never told his disciplinary hearing had been moved to a new date.

What this practically means

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Executive summary

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The appellant, a police constable attached to Rabai Police Division, was fined Kshs 2,500 by the County Police Commander, Kilifi, following orderly room proceedings for allegedly failing to report to duty on 18th December 2013. His judicial review application for certiorari to quash the Kilifi County Weekly Order No. 5/2014 was dismissed by Emukule, J. on 15th May 2015, finding no illegality, irrationality or procedural impropriety. The Court of Appeal allowed his appeal. It held that although the appellant was notified of an inquiry scheduled for 23rd December 2013, the record showed no proceedings took place on that date; they in fact commenced on 14th January 2014 without notice to him. His right to fair administrative action under Article 47 of the Constitution required notice of the rescheduled proceedings. Further, the officer appointed to represent him in absentia, Insp. Saidi, did not discharge the statutory duty of assistance under section 89(4) of the National Police Service Act, merely declining to cross-examine witnesses and offering nothing in mitigation. The court confirmed that internal police disciplinary proceedings are constitutionally permissible and do not usurp judicial power, provided they comply with Article 47, and that a senior officer presiding over a junior's disciplinary case is not automatically biased; the test is whether a reasonable and fair-minded person would conclude bias existed. The court also endorsed the principle, restated in earlier authorities, that memoranda of appeal must be precise and concise. The appeal was allowed, the High Court ruling was set aside, certiorari issued quashing the fine, and the appellant was awarded costs.

Key legal issues

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01

Right to be heard where proceedings commenced on a date other than that notified

Holding

The appellant's right to fair administrative action was violated because no proceedings took place on the notified date and he was not notified of the fresh proceedings commencing 14th January 2014.

Reasoning

The Notification of Disciplinary Inquiry fixed the hearing for 23rd December 2013. The record contains nothing showing anything transpired on that date; the transcript shows proceedings commenced on 14th January 2014 with the appellant marked absent. Without a record of proceedings on the appointed date, the court must conclude none took place. An officer notified of one date cannot be deemed notified of proceedings on another, unnotified date, and absence of notice of the rescheduled hearing breached Article 47.

p. 6
02

Adequacy of representation by a police officer appointed in absentia

Holding

Insp. Saidi, appointed to represent the appellant, did not adequately represent him, reducing his role to a mere formality, so the respondents' assertion of adequate representation failed.

Reasoning

Section 89(4) of the National Police Service Act allows an officer facing disciplinary action to be accompanied by another officer of his choice. Where a representative is appointed in absentia, he must strive to discharge that statutory duty. Insp. Saidi asked no questions in cross-examination of any witness and made no mitigation beyond stating he had 'nothing to say.' Such conduct put the lie to the claim that the appellant was adequately represented.

p. 7
03

Constitutionality of internal police disciplinary mechanisms

Holding

Internal police disciplinary proceedings are not a usurpation of judicial power provided they satisfy the test of fair administrative action under Article 47.

Reasoning

The National Police Service Act establishes internal disciplinary mechanisms, and section 89(3) expressly requires disciplinary proceedings to comply with Article 47. Articles 50 and 159 of the Constitution contemplate dispute resolution by bodies other than courts. National security organs must pursue their mandate in compliance with the law and respect for human rights, including the rights of police officers themselves, who are entitled to all constitutional rights subject to the limited derogations in section 47 of the Act.

p. 5
04

Bias and impartiality of the presiding officer

Holding

No bias was established against Insp. Baru, and the complaint that the complainant (Supt. Matsili) testified was misconceived, since the accuser must be confronted and cross-examined.

Reasoning

Although the rule of nemo iudex in causa sua applies, disciplinary proceedings may properly be presided over by a senior officer to whom the junior reports. The decisive question is objective bias, judged from the record. The court found nothing from which bias could reasonably be suspected. The complaint that the complainant testified would have made sense only if the complainant had lodged the complaint and failed to testify; confrontation of one's accuser is an attribute of a fair hearing.

p. 6

Legal principles established

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  • The right to fair administrative action under Article 47 is not among the rights of police officers limited by section 47 of the National Police Service Act, and police disciplinary proceedings must comply with Article 47.
  • Where an inquiry is notified for a particular date and no proceedings take place on that date, the subject must be notified of the rescheduled proceedings; hearing him in absence without such notice violates Article 47.
  • A representative officer appointed in absentia must actively discharge the statutory duty to assist the subject of disciplinary proceedings; the provision is not a hollow formality.
  • In disciplinary proceedings presided over by a senior officer, the test is not merely that the presiding officer is the subject's boss but whether a reasonable and fair-minded person would conclude there was bias.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court dated 15th May 2015 set aside and substituted with an order of certiorari quashing Kilifi County Weekly Order No 5/2014 which imposed a fine of Kshs 2,500/- upon the appellant
  3. 3.Appellant to have costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 238
  • Constitution of Kenya, 2010Article 239
  • Constitution of Kenya, 2010Article 244
  • National Police Service Act, 2011Section 88(1)
  • National Police Service Act, 2011Section 88(2)
  • National Police Service Act, 2011Section 88(2)(p)
  • National Police Service Act, 2011Section 89(3)
  • National Police Service Act, 2011Section 89(4)
  • National Police Service Act, 2011Section 46(1)
  • National Police Service Act, 2011Section 47
  • National Police Service Act, 2011Eighth Schedule
  • National Police Service RegulationsRegulation 88(2)
  • National Police Service RegulationsRegulation 3(3)
  • National Police Service RegulationsRegulation 2, sub-section (20)
  • Fair Administrative Action Act, 2015General (came into force 17th June 2015)
  • Court of Appeal RulesRule 86(1)
  • Force Standing OrdersGeneral (allowing hearings in absentia)

Cases cited (10)

  • Council for Civil Service Unions v. Minister for Civil Service
    [1985] AC 374
  • William Koross v. Hezekiah Kiptoo Komen & 4 Others
    CA. No. 223 of 2013 (Eldoret)
  • Abdi Ali Dere v. Firoz Hussein Tundal & Others
    CA No. 310 of 2005
  • Andrew Peter Ngirich & Another v. Wanje Masha Wanje
    CA No. 17 of 2015 (Malindi)
  • Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others
    CA No. 266 of 1996
  • Judicial Service Commission v. Mbalu Mutava & Another
    CA. No. 52 of 2014
  • Attorney General & Another v. Randu Nzai Ruwa & Others
    CA. No. 275 of 2012
  • Bogonko v. National Environment Management Authority
    KLR (E&) 1, 772
  • Attorney General of Kenya v Prof. Peter Anyang Nyong’o & 10 Others
    EACJ APP No. 5 of 2001
  • Kalpana H. Rawal v Judicial Service Commission & Others
    CA (APP) No 1 of 2016
On appeal from
High Court of Kenya at Mombasa
Misc. App. No. 34 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules; appeal against a ruling in judicial review proceedings (order of certiorari sought under Article 47 of the Constitution and order 53 of the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Munga v Minister For Interior & National Coordination & 3 others [2016] KECA 244 (KLR)", Case Analysis (2016). Civil Appeal No. 1 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/244/eng@2016-10-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.