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Court of AppealAllowedCivil Appeal No. 149 of 2017· [2019] KECA 442 (KLR)

George Kingi Bamba v National Police Service Commission [2019] KECA 442 (KLR)

Court of Appeal
6 August 2019
William OukoW. OukoWKW. KaranjaFSF. Sichale
5,727 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal reinstated a police officer vetted out unfairly, ruling that vetting panels must give officers notice, time and legal representation.

What this practically means

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Executive summary

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The appellant, a Senior Superintendent of Police, was vetted out of the National Police Service by the respondent under section 7(2) of the National Police Service Act and Regulation 32(1) of the National Police Service (Vetting) Regulations, 2013, on grounds connected to the sale of relief food. The Employment and Labour Relations Court (Mbaru, J) dismissed his petition challenging the vetting. On appeal, the Court of Appeal (Ouko, Karanja and Sichale, JJ.A) framed three issues: whether the appellant received a fair hearing; whether the misconduct was proved; and whether the vetting panel was properly constituted. The Court held that vetting proceedings are inquisitorial, not adversarial, and that once the appellant's fate came to depend on the issue of relief-food sale which arose unexpectedly from his own plenary answers, the panel was bound to grant adequate time, notice and legal representation under the Constitution, Article 47, the Fair Administrative Action Act and the Vetting Regulations. Using the appellant's own honest statements against him offended Regulation 29. The Court further found the allegations not proved on the evidence, and held that it was irregular and unlawful for commissioners who did not participate in the vetting or review to sign the decision, an impropriety that went to jurisdiction and vitiated the decision. The Court allowed the appeal, set aside the judgment below, allowed prayers 1 to 4 of the petition including reinstatement with salary and benefits, and ordered each party to bear its own costs.

Key legal issues

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01

Fair hearing / natural justice in vetting

Holding

The vetting and review process denied the appellant a fair hearing because the sale of relief food arose unexpectedly at the plenary session and he was condemned without notice, adequate time or legal representation.

Reasoning

The matter of relief-food sale emerged from the appellant's own plenary answers and was not the subject of a prior complaint under regulation 18(2). Under section 4(3) of the Fair Administrative Action Act and Regulation 9, the panel had power to adjourn and investigate whether the trade was permitted; instead it used the appellant's own honest answers against him, contrary to Regulation 29, and barred his advocate from the review hearing, an averment left uncontroverted.

p. 6
02

Sufficiency of proof of misconduct

Holding

The findings that the appellant personally traded in relief food and that the trade was unlawful were not supported by independent evidence; the learned Judge's contrary conclusion had no support in the record.

Reasoning

The appellant consistently explained that his wife, not he, bought maize from lawful traders in the open market; six official letters showed the refugee maize trade was permitted and condoned by state agencies. The panel dismissed this evidence without investigation, and the Judge erred in finding the appellant repackaged and sold relief food without independent proof, and failed to weigh his unblemished record of over 35 years' service.

p. 7
03

Composition and signing of the vetting panel's report

Holding

Although a quorum was present at both vetting and review, it was irregular and unlawful for persons who did not participate in the proceedings to sign the decision; this procedural impropriety went to jurisdiction and vitiated the decision.

Reasoning

Of six members at vetting only two signed the report, while three signatories did not participate; at review, two non-participants signed the final report. Rule 25(4) requires decisions to be signed by all Commissioners who decided the matter. The Judge, though addressed on this ground, made no mention of it, an error that undermined her judgment.

p. 7
04

Role on first appeal

Holding

On a first appeal the Court reconsiders and evaluates the evidence itself and draws its own conclusions, though with due allowance for the fact it neither saw nor heard the witnesses.

Reasoning

Applying Selle & another v Associated Motor Boat Co Ltd, the Court stated the settled principles: an appeal from the High Court is by way of retrial; the Court is not bound necessarily to accept the findings of fact by the court below, and may depart where the trial judge failed to take account of particular circumstances or probabilities materially to estimate the evidence.

p. 3

Legal principles established

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  • Where a person's fate in vetting depends on an adverse matter arising unexpectedly during proceedings, the panel must afford the person adequate time to present his case and obtain legal representation; condemnation without such opportunity breaches fair administrative action.
  • Only panel members who actually participated in the vetting or review proceedings may lawfully sign the decision; signing by 'strangers' is a procedural impropriety that goes to jurisdiction and vitiates the decision.
  • Vetting proceedings are inquisitorial, not adversarial, and are not bound by strict rules of evidence; the standard of proof is on a balance of probabilities.

Court orders

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  1. 1.Judgment and decree of the Employment and Labour Relations Court dated 30th March 2017 set aside
  2. 2.Prayers 1, 2, 3 and 4 in the appellant's petition dated 2nd June 2016 allowed
  3. 3.Appellant reinstated, if he has not retired, to the position he served at the time of his vetting out with salary and other benefits
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 244
  • Constitution of Kenya, 2010Article 246(3)
  • Constitution of Kenya, 2010Articles 20, 21 and 22
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 232
  • Constitution of Kenya, 2010Chapter Six
  • National Police Service Actsection 7(1), (2), (3) and (4)
  • National Police Service (Amendment) Act, 2014section 6
  • National Police Service Commission Actparagraph 3 of the Second Schedule
  • Independent Policing Oversight Authority Actnot specified
  • National Police Service (Vetting) Regulations, 2013Regulations 4(f), 7, 9, 18(2), 25(4), 28, 29, 32(1)
  • Fair Administrative Action Act, 2015sections 4(3), 4(3)(e), 4(5) and 6
  • Public Officer Ethics Actnot specified
  • Police Act (Cap. 84)not specified
  • Administration Police Act (Cap. 85)not specified

Cases cited (6)

  • Selle & another V. Associated Motor Boat Co. Ltd & others
    (1968) EA 123
  • Judicial Service Commission V Mbalu Mutava & Another
    Civil Appeal No. 52 of 2014
  • Selvarajan V. Race Relations Board
    [1976] 1 ALL ER 12
  • Kenya Revenue Authority V. Menginya Salim Murgani
    Civil Appeal No. 108 of 2009
  • Baker V. Canada (Minister of Citizenship & Immigration)
    2 S.C.R. 817
  • Eusebius Karuti Laibuta V. National Police Service Commission
    H.C. Petition No. 79 of 2014
On appeal from
Employment and Labour Relations Court at Nairobi
Petition No. 87 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (appeal from the Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "George Kingi Bamba v National Police Service Commission [2019] KECA 442 (KLR)", Case Analysis (2019). Civil Appeal No. 149 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/442/eng@2019-08-06

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