Jonathan Kipkurui Koskei & another v National Police Service Commission & another [2015] KEELRC 650 (KLR)
The bottom line
#Two police officers lost their bid for reinstatement because they refused re-vetting and asked the court to relive orders already granted by another court.
What this practically means
#Executive summary
#Key legal issues
#Reinstatement and the effect of non-compliance with orders to submit to re-vetting
Reinstatement was already in force via interim orders, and the Applicants could not complain of non-vetting while remaining outside the workplace in disregard of the orders
The Court found the Applicants had not appraised it of their status after the 1 December 2014 orders requiring them to remain in employment and submit to de novo vetting. Having failed to subject themselves to re-vetting, they could not justify claims that the Respondents failed to set vetting in motion. Remaining outside the workplace was contrary to the interim orders they enjoyed.
Capacity of the 1st Respondent's officer to swear an affidavit for the 2nd Respondent
The deponent's typographical error did not admit the application; the burden of proving the applicants' case remained on the Applicants
The Court accepted the reference to the 2nd Respondent was a typographical error and noted the averments largely repeated submissions on preliminary objections already addressed. Whatever error the Respondents made, the duty to support the application by affidavit evidence lay with the Applicants as it was their case.
Whether the orders sought (certiorari, prohibition, reinstatement, stay) could still issue
No outstanding remedy remained; the relief sought had been granted by prior court orders, and re-litigating the vetting issues was res judicata in substance and an abuse of process
The High Court on 20 May 2014 in Petition 6 of 2014 (consolidated with JR 11 and 12 of 2014) quashed the vetting, prohibited effecting the determination and directed vetting de novo; this Court's orders of 1 December 2014 reinstated the Applicants, operating as a stay. Any fresh grievances about the second vetting required a fresh suit. Re-raising the same issues amounted to a second trial of the same matters.
Legal principles established
#- A party must disclose to the Court facts and materials arising after interim orders, including compliance with those orders, before the Court can intervene on adverse orders
- It is an abuse of court process to re-litigate issues already determined by a court of concurrent jurisdiction on the same facts
- Affidavits must be made by a deponent on matters within their own knowledge, and the burden of supporting an applicant's case rests on the applicant regardless of defects in the respondent's affidavit
Court orders
#- 1.The application is dismissed
- 2.Each party shall bear their own costs
- Jurisdiction invoked
- Judicial review jurisdiction of the Employment and Labour Relations Court under Order 53 of the Civil Procedure Rules; vetting under Article 246 of the Constitution and the National Police Service Commission Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jonathan Kipkurui Koskei & another v National Police Service Commission & another [2015] KEELRC 650 (KLR)", Case Analysis (2015). Misc. Application JR 21 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/650/eng@2015-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.