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ELRCPartially AllowedJudicial Review Application (notice of motion dated 24.03.2016, leave granted in chamber summons dated 19th February 2016)· [2016] KEELRC 1024 (KLR)

Margaret Nyaruai Theuri v National Police Service Commission [2016] KEELRC 1024 (KLR)

Employment and Labour Relations Court
1 July 2016
BOByram Ongaya
4,111 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court quashed the police vetting commission's rejection of an officer's review, ruling she deserved a proper hearing of her case.

What this practically means

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Executive summary

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A police officer, Superintendent Margaret Nyaruai Theuri, failed a vetting exercise before the National Police Service Commission and was removed from service by letter dated 09.10.2015. Through her advocates she sought review under regulation 33 of the National Police Service (Vetting) Regulations, 2013 within the prescribed seven days, raising some fifteen grounds. By letter dated 25.01.2016 the Commission stated that it had considered the application, found it not merited under regulation 33 and had 'not admitted' it. She moved the Employment and Labour Relations Court at Nyeri for certiorari to quash that letter and mandamus compelling the Commission to hear and decide her review within ten days. The respondent objected on jurisdiction, defect for not suing in the name of the Republic, and merits. The court upheld its jurisdiction, holding the test is the subject matter of the dispute (employment relations), not the remedy sought, following Seven Seas Technologies v Eric Chege and Abdikadir Suleiman v County Government of Isiolo. It rejected the naming objection because under Articles 22 and 23 any person may seek judicial review, and Article 159(2)(d) bars undue regard to technicalities. On the merits it held that regulation 33 contains no power to refuse admission of a review application; the Commission therefore abdicated its statutory duty and denied the right to review. It held legal representation desirable but not mandatory and declined to impose the ten-day deadline, noting regulation 33(3) stays the removal decision during review. Certiorari and mandamus issued, with costs to the respondent.

Key legal issues

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01

Jurisdiction of the ELRC over vetting and removal of a police officer

Holding

The Court holds it has jurisdiction; the test is subject matter (employment and labour relations), not the remedies sought or procedure adopted

Reasoning

Relying on Seven Seas Technologies Ltd v Eric Chege (Rika J) and its own decision in Abdikadir Suleiman v County Government of Isiolo, the court reasoned that the Constitution (Articles 162(2)(a), 165(5) and (6)) vests exclusive jurisdiction in the ELRC over employment disputes. Vetting leading to removal from police service touches the employment relationship, so the preliminary objection on jurisdiction failed.

p. 4
02

Whether the application was defective for not being brought in the name of the Republic

Holding

Not defective; under the 2010 Constitution every person may seek judicial review orders under Articles 22 and 23, and prerogative-order formalities are obsolete

Reasoning

The court distinguished the old prerogative-order authorities (Republic v Secretary, Public Service Commission; Farmers Bus Service; Kenhon Kijabe Hill Farmers) as premised on crown prerogative. Grant of judicial review is now founded on Article 23(3)(f). Collapsing the suit on the title of pleadings would offend Article 159(2)(d) against undue regard to procedural technicalities.

p. 4
03

Whether the respondent denied the applicant the right to a review by refusing to 'admit' the application

Holding

Yes; regulation 33 contains no power of non-admission, and the respondent abdicated its duty by not considering the application on merits

Reasoning

The word 'admit' means 'accept as valid', a preliminary rejection for want of formality, but no formal prescription existed; timeliness is a substantive consideration. Regulation 33(2) and (4) contemplate grant based on prescribed grounds, culminating in confirmation or reversal. Regulation 34 requires an accurate record, and none existed showing consideration on merits. The grounds raised therefore remain unanswered.

p. 4
04

Right to be heard and to legal representation at the review

Holding

Procedure is for the respondent to determine but must satisfy regulation 4 principles and Articles 10, 27, 47, 50 and 232; a hearing is largely appropriate where facts are in issue; legal representation is desirable though not mandatory

Reasoning

Regulation 11 lets the respondent set the sequence of the vetting process, which includes the review, but regulation 4 requires consistency, transparency and adherence to constitutional values including fair administrative action under Article 47(1). Since the applicant raised numerous factual grounds, resolution without a hearing would be difficult. The court cited its own reasoning in Republic v Arnold Karani Njiru ex-parte Amin Mohammed Ali on legal representation.

p. 6

Legal principles established

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  • The Employment and Labour Relations Court, not the High Court, has jurisdiction over all disputes relating to employment and labour matters, and the test is the subject matter of the dispute, not the remedies sought or procedure adopted
  • Under the Constitution of 2010, judicial review orders need not be sought in the name of the Republic; Articles 22 and 23 entitle every person to seek them and Article 159(2)(d) bars undue regard to procedural technicalities
  • An administrative body with power to confirm or reverse its own decision on review abdicates its statutory duty where it purports to refuse to 'admit' a review application when no such power exists in the governing regulation
  • Where matters in issue involve evidence to establish facts, a hearing in administrative proceedings will largely be appropriate, and any procedure adopted must meet the ends of justice under the guiding principles of the applicable regulations
  • Legal representation in administrative decision-making is desirable though not mandatory, particularly where the decision's consequences for livelihood and employment are grave

Court orders

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  1. 1.Order of Certiorari removing into the Court and quashing the decision made by the National Police Service Commission conveyed by the letter dated 25th January 2016
  2. 2.Order of Mandamus issued against the National Police Service Commission directing them to grant or not to grant the applicant's application for review dated 19.10.2015 by confirming or reversing its earlier decision as envisaged in regulation 33 of the National Police Service (Vetting) Regulations, 2013 and in accordance with the other provisions of the Regulations and relevant constitutional values and principles
  3. 3.Costs of the matter to be borne by the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII Rule 3(1)
  • Law Reform Actsections 8 and 9
  • National Police Service Actsection 7(2), (3) and (4)
  • National Police Service (Vetting) Regulations, 2013regulations 4, 11, 33, 34 and 33(2), (3), (4)
  • Constitution of Kenya, 2010Articles 10, 22, 23(3)(f), 27, 47(1), 50, 159(1), 159(2)(d), 162(2)(a), 165(5) and (6), 232, 236(b), 258(1)
  • Employment and Labour Relations Act2011

Cases cited (6)

  • Seven Seas Technologies Limited -Versus- Eric Chege
    [2014] eKLR
  • Abdikadir Suleiman -Versus- County Government of Isiolo and Another
    [2015] eKLR
  • Republic -Versus- Secretary, Public Service Commission
    [2010] eKLR
  • Farmers Bus Service & Others -Versus- The Transport Licensing Appeal Tribunal
    (1997) EA 779
  • Kenhon Kijabe Hill Farmers Co-operative Society -Versus- The District Officer Naivasha
    H.C.Misc. App. No. 280 of 1996 (UR)
  • Republic -Versus- Arnold Karani Njiru, Fund Account Manager, Laikipia East Constituency Fund and 10 Others Ex-parte Amin Mohammed Ali
    [2015] eKLR
Jurisdiction invoked
Articles 159(1), 162(2)(a) as read with Article 165(5) and (6), Articles 22(1) and 258(1) of the Constitution and the Employment and Labour Relations Act, 2011; application brought under Order LIII Rule 3(1) of the Civil Procedure Rules and sections 8 and 9 of the Law Reform Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Margaret Nyaruai Theuri v National Police Service Commission [2016] KEELRC 1024 (KLR)", Case Analysis (2016). Judicial Review Application (notice of motion dated 24.03.2016, leave granted in chamber summons dated 19th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1024/eng@2016-07-01

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