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ELRCPartially AllowedPetition No 13 of 2015· [2016] KEELRC 1028 (KLR)

Stephen Kemei Kiptum & 2 others v National Police Service Commission [2016] KEELRC 1028 (KLR)

Employment and Labour Relations Court of Kenya
24 June 2016
4,853 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court quashed the police vetting dismissals of two officers for unfairness but upheld the dismissal of an officer who misappropriated funds.

What this practically means

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Executive summary

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Three senior police officers of the rank of Assistant Commissioner of Police petitioned the Employment and Labour Relations Court challenging their removal from the National Police Service following vetting conducted under section 7 of the National Police Service Act. They alleged violations of Articles 27, 35, 40, 47 and 50 of the Constitution and sought declarations, certiorari to quash the decisions of 22nd May 2014 and 7th January 2015, mandamus to reinstate the 1st and 3rd petitioners, and a declaration of honourable retirement for the 2nd petitioner. The respondent maintained the removals were for valid reasons under a fair procedure supported by the National Police Service Act, the Leadership and Integrity Act and the Public Officers Ethics Act. Applying the Wednesbury standard of reasonableness, the court upheld the dismissal of the 1st petitioner, finding that although the finding that he claimed statehouse access was made on a non-existent allegation contrary to natural justice, the finding of abuse of office through misappropriation of Kshs 420,000 meant for a junior officer was sustainable and his explanation was untruthful; double jeopardy was rejected. The 2nd petitioner's removal for professional negligence over contradicting document examination reports and lack of financial probity was found irrational, baseless and reliant on irrelevant factors, violating Articles 47 and 50; he was declared to have retired honourably. The 3rd petitioner's dismissal for conflict of interest from matatu directorship was based on no evidence, and his Article 40 property rights were violated; he was reinstated by mandamus. Certiorari quashed the decisions against the 2nd and 3rd petitioners. The court held re-vetting could not validate void decisions. Costs were awarded to the 2nd and 3rd petitioners.

Key legal issues

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01

Natural justice - finding based on allegation not put to the officer

Holding

The finding that the 1st petitioner claimed access to statehouse to intimidate a security guard was made on a non-existent allegation and violated natural justice and Article 47(1); however, the separate misappropriation finding was independently sustainable and his dismissal was upheld

Reasoning

The charge sheet contained no allegation about claiming statehouse access, so the petitioner had no opportunity to respond. That finding was therefore unfair. Yet the refund of Kshs 420,000 was relevant, not extraneous, to assessing integrity under Chapter 6, and the court rejected the double jeopardy argument, upholding dismissal of the 1st petitioner.

p. 3
02

Reasonableness of the decision against the 2nd petitioner

Holding

The finding of professional negligence on the contradicting document examination reports and of lack of financial probity was irrational, without basis, and relied on irrelevant and extraneous factors; it violated Articles 47 and 50

Reasoning

The commission members were not document examiners and proceeded on myth and hypothesis rather than verified international practice; both reports (photocopy-based and original-based) were before the trial court, and the criminal case was pending. On financial probity, the finding was unsupported by evidence of impropriety and disregarded the petitioner's explanation.

p. 5
03

Conflict of interest and Article 40 property rights - 3rd petitioner

Holding

No evidence supported the conflict of interest finding; section 71(1) of the National Police Service Act was not violated; the dismissal breached Article 40 and was unlawful, null and void

Reasoning

The buses belonged to a separate corporate entity; no evidence showed the 3rd petitioner performed traffic duties, received preferential treatment for the vehicles, or concealed the business, which he had long declared. The commission speculated about a 'likelihood' of improper influence and did not investigate acquisition of the vehicles. The petitioner was also not given an opportunity to divest.

p. 7
04

Efficacy of review/re-vetting

Holding

The re-vetting could not cure or validate the original irrational and void decisions in respect of the 2nd and 3rd petitioners, and their original vetting offended Articles 47(1) and 50(1)

Reasoning

The court noted all three petitioners were re-vetted and the panel's decisions upheld, but held that a review process cannot launder decisions that were null and void ab initio, save that in the 1st petitioner's case the underlying dismissal was itself upheld.

p. 8

Legal principles established

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  • An administrative body making adverse findings must put the allegations to the affected officer to afford an opportunity to respond; a finding on a non-existent allegation violates natural justice and Article 47(1)
  • A decision unsupported by evidence, based on speculation, conjecture and irrelevant or extraneous matters, is unreasonable, unlawful, null and void
  • A vetting body must adhere to the standard of proof on a balance of probabilities and conduct investigations impartially before adverse findings
  • Section 71(1) of the National Police Service Act prohibits outside business only where it conflicts with the officer's duties; no such conflict was proved against the 3rd petitioner
  • A review or re-vetting process cannot validate an original decision that was irrational and null and void

Court orders

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  1. 1.Declaration that the 2nd and 3rd petitioners' rights under Article 47(1) and 50(1) of the Constitution were violated by the respondent by dismissing them from the National Police Service without procedural fairness or objective, rational or fair grounds
  2. 2.Declaration that the 3rd petitioner's right under Article 40 of the Constitution was violated by his dismissal on alleged conflict of interest arising from ownership and shareholding of a corporate body operating motor vehicles in the transport sector
  3. 3.Judicial review order of certiorari to remove into the Employment and Labour Relations Court and quash the respondent's decisions of 22nd May 2014 and 7th January 2015 dismissing the 2nd and 3rd petitioners
  4. 4.Judicial review order of mandamus compelling the respondent to reinstate the 3rd petitioner into the National Police Service
  5. 5.Declaration that the 2nd petitioner retired honourably and without blemish on his record upon attainment of the mandatory retirement age
  6. 6.Dismissal of the 1st petitioner's petition
  7. 7.Respondent to pay costs of the petition in respect of the 2nd and 3rd petitioners

Authorities

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Legislation

  • Constitution of Kenya 2010Article 27(1), 28, 35(1), 40(1) & (2), 47(1) & (2), 50(1), 2(1), 2(4), 10, Chapter 6
  • National Police Service Actsection 7; section 71(1)
  • National Police Vetting Regulationsregulations 7, 9, 14(2)(b), 28
  • Leadership and Integrity Actsection 16
  • Public Officers Ethics Actsection 12

Cases cited (3)

  • Immanuel Masinde Okutoyi & Others v National Police Service Commission and another
    [2014] eKLR
  • Associated Provincial Picture Houses Ltd v Wednesbury Corporation
    [1947] 2 All ER 680
  • Dismas Juma Wanasibwa v National Police Service and two Others
    [2014] eKLR
Jurisdiction invoked
Articles 27(1), 35(1), 40(1), 47(1) & (2) and 50(1) of the Constitution of Kenya 2010; the petition invoked Article 2(1), 2(4) and 10; judicial review orders of certiorari and mandamus removed into 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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Cite this brief

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Cite this brief

Caselaw, "Stephen Kemei Kiptum & 2 others v National Police Service Commission [2016] KEELRC 1028 (KLR)", Case Analysis (2016). Petition No 13 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1028/eng@2016-06-24

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