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ELRCPartially AllowedNot stated in the judgment (Notice of Motion dated 28th January 2015 within a Petition)· [2016] KEELRC 1506 (KLR)

Stephen Kemei Kiptum, Emmanuel Kenga Karisa & Peter Mwau Muinde v National Police Service Commission [2016] KEELRC 1506 (KLR)

Employment and Labour Relations Court
18 March 2016
1,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Three Kenyan police officers removed after vetting won orders keeping their jobs, salaries and housing until the court fully hears their case.

What this practically means

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Executive summary

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This interlocutory ruling of the Employment and Labour Relations Court at Nairobi, delivered by Mathews N. Nduma, Principal Judge, on 18th March 2016, concerned a Notice of Motion dated 28th January 2015 by three police officers removed from service following vetting by the National Police Service Commission. The matter had been transferred from the High Court by Lenaola J, who certified it urgent, granted initial interim relief and found the High Court lacked jurisdiction. The Petitioners sought confirmation of ex-parte conservatory orders staying the decisions of 22nd May 2014 and 7th January 2015 removing them from office, continued payment of salaries and allowances, prohibition of the eviction of the 1st Petitioner from police housing, and production of certified records of the review proceedings under Article 35 of the Constitution. The Respondent opposed through a replying affidavit of Chairman Johnstone Kavuludi and grounds of opposition. The court refused prayer 6, holding that the Respondent had already supplied sufficient documentation, including decisions with reasons, minutes of the Commission's Board meeting of 18th December 2014 and verbatim vetting records, and that any inferences from missing verbatim deliberations could be drawn at the substantive hearing. Applying Giella v Cassman Brown and American Cyanamid, the court found bona fide serious issues, weighed public interest against the Petitioners' prospects of reinstatement and the limits on damages, and, noting over twenty years' service each, granted prayers 3 and 5, confirming the conservatory orders and the prohibition on eviction. The petition was to be fast-tracked for hearing before any judge of the court.

Key legal issues

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01

Right of access to information under Article 35

Holding

Prayer 6 refused because the Respondent had already supplied the decisions, reasons, minutes and verbatim vetting records; the missing verbatim Commission deliberations do not unduly hinder the petition

Reasoning

The court examined the documents attached to the Respondent's affidavits, including communications of 7th January 2015 containing decisions and reasons, minutes of the Commission's Board meeting of 18th December 2014, and verbatim vetting review records subsequently supplied. It concluded the Petitioners had sufficient material to prosecute the petition, and any inference from missing deliberations could be drawn at the substantive hearing.

p. 3
02

Confirmation of conservatory orders pending petition

Holding

Confirmed: serious issues to be investigated, potential irreparable harm given limitations on damages, and balance of convenience favouring the Petitioners after long service exceeding 20 years

Reasoning

Applying Giella v Cassman Brown, the court found arguable issues as in American Cyanamid. It weighed public interest in removing unsuitable officers against the Petitioners' likelihood of never being reinstated and suffering unpaid salaries, considered statutory and common law limits on damages, and, noting over 20 years' service each, found it just to grant the conservatory orders in prayers 3 and 5.

p. 4
03

Contradiction in the record for the 3rd Petitioner

Holding

The court noted the review record shows the 3rd Petitioner's review was allowed with re-vetting recommended, yet he received a letter of dismissal

Reasoning

The court recorded that the 3rd Petitioner's review application was allowed and re-vetting recommended, but he received a letter indicating dismissal contrary to the record. This discrepancy was not resolved at the interlocutory stage but informs the serious issues to be tried.

p. 2

Legal principles established

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  • The three Giella conditions govern the grant of interlocutory relief, including conservatory orders
  • In removal-from-service cases, public interest is balanced against the private interest of removed officers unlikely to be reinstated

Court orders

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  1. 1.The Respondent is injuncted from implementing the decisions dated 22nd May 2014 and 7th January 2015 removing the Petitioners/Applicants from office pending the hearing and determination of the petition
  2. 2.The Petitioners' monthly salaries and allowances continue to be paid pending the hearing and determination of the petition
  3. 3.The Respondent is prohibited from evicting or ejecting the 1st Petitioner from house No.2 West Park Estate, Lang'ata, police housing, pending the hearing and determination of the petition
  4. 4.Prayer 6 for further documentation refused; the Respondent held to have already provided sufficient documentation
  5. 5.The petition to be fast-tracked and set down for hearing before any judge of the court by the Registrar

Authorities

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Legislation

  • Constitution of Kenya 2010Article 35(1)

Cases cited (3)

  • Giella Vs Cassam Brown & Co Ltd
    [1973] EA 358
  • American Cyanamid Co Vs Ethicon Ltd
    [1975] AllER 504
  • Mary Aliviza & Okotch Mandoh Vs A. G. of Kenya & Secretary General of the East African Community
    Application No 3 of 2010, EALS Law Digest 2005-2011 p.4
Jurisdiction invoked
Matter transferred from the High Court by Lenaola J who determined the High Court lacked jurisdiction, it being an Employment and Labour Relations dispute

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, Emmanuel Kenga Karisa & Peter Mwau Muinde v National Police Service Commission [2016] KEELRC 1506 (KLR)", Case Analysis (2016). Not stated in the judgment (Notice of Motion dated 28th January 2015 within a Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1506/eng@2016-03-18

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