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ELRCDismissedPetition (Nairobi), number not stated in judgment· [2016] KEELRC 1761 (KLR)

Kenya Council of Employment and Migration Agency & another v National Police Service Commission & 6 others [2016] KEELRC 1761 (KLR)

High Court of Kenya
28 January 2016
4,807 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The High Court dismissed a challenge to senior police appointments, ruling that vague constitutional claims and missing evidence cannot overturn a recruitment process that followed due procedure.

What this practically means

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Executive summary

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The petitioners, a registered civil society organization and its chairman, petitioned the High Court challenging decisions made around October 2014 by the National Police Service Commission in appointing vetted police officers to new ranks (SAIG, AIG and CP) following the gazettement of the new police rank structure. They alleged that the appointments were made in a hotel boardroom through corruption, nepotism and tribalism, that two tribes dominated the nominations, that the meetings lacked a quorum, and that there were no advertisements or competitive interviews, contravening Articles 10, 232, 73, 246(3) and (4) of the Constitution and section 5 of the National Police Service Act. They also challenged the secondment of the 5th respondent, alleging he received a double salary. The respondents denied the allegations, showing the vetting and appointment criteria adopted, and asserted the petition was defective and an abuse of process. The Court, per Mumbi Ngugi J, found the pleadings convoluted and lacking precision, invoking the Anarita Karimi Njeru principle as restated in Mumo Matemu. It held the petitioners placed no evidence before the Court supporting the allegations of tribalism, nepotism or irregular process, that diversity in composition is assessed taken as a whole, and that the Court's role in reviewing appointments is confined to legality, not merits, with corruption allegations belonging to the EACC. The petition was dismissed with no order as to costs.

Key legal issues

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01

Precision in constitutional pleadings

Holding

The pleadings were convoluted and failed to identify with precision whose rights were violated or how; the Court could only address the diversity issue

Reasoning

Relying on Mumo Matemu and Anarita Karimi Njeru, the Court held that while exactitude is not required, a petitioner must place pleadings and evidence enabling the court to understand the grievances and the evidential basis of the claim. The petitioners, despite being given an opportunity to amend, failed to clarify their case.

p. 6
02

Regional and ethnic diversity in National Police Service appointments

Holding

No violation of Article 246(3) and (4) or section 5 of the National Police Service Act was established; the Commission followed a laid-down criteria and gazetted process

Reasoning

The Commission gazetted the new ranks, adopted a uniform appointment criteria and vetted officers. The petitioners produced no evidence of nepotism, tribalism or lack of quorum. Diversity is assessed on the service taken as a whole, and the Court will not interfere with a process meeting due process requirements absent proof of illegality.

p. 9
03

Allegations of corruption and double salary against the 5th respondent

Holding

The allegations were unsupported; the Court is not the forum for corruption inquiries, which fall to the EACC, and the secondment documentation showed no double salary

Reasoning

The 5th respondent deponed that his secondment took effect on 1st October 2014, that the AG released him and that his salary ceased. The petitioners offered no evidence of double payment. Any corruption allegations should be pursued before the Ethics and Anti-Corruption Commission, not the Court.

p. 9

Legal principles established

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  • The duty of the Court in reviewing an appointment process is to ensure it meets the test of legality, not to re-examine the merits or usurp the functions of constitutional bodies
  • A petitioner must set out, with a reasonable degree of precision, the constitutional provisions violated and the manner of violation (Anarita Karimi Njeru principle)
  • Diversity requirements in public appointments are assessed on the composition taken as a whole, not on individual appointments

Court orders

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  1. 1.The petition is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 22, 23, 243, 246(3)-(4), 232, 27, 47, 50, 73, 156, 159, 165(6)-(7), 250(4); Chapter Four; Chapter Six
  • National Police Service Actsections 5(a)-(b), 10, 11(1)(b), 28; First Schedule
  • National Police Service Commission Actsection 15
  • Public Officers Ethics Act2003
  • Evidence Actsection 107
  • Civil Procedure Actsections 1A, 1B; Order 16 Rule 7
  • Appellate Jurisdiction Actsections 3A, 3B
  • Legal Notice No. 117 of 28th June 2013

Cases cited (15)

  • Ferdinand Ndung’u Waititu vs Independent Electoral and Boundaries Commission and 8 Others
    [2013] eKLR
  • Gandhi Brothers vs H K Njage T/A H K Enterprises, Nairobi HCCC No 1330 of 2001
  • Maria Ciabaitaru M’mairanyi and Others vs Blue Shield Insurance Company Limited
    Civil Appeal No 101 of 2000 [2005] 1 EA 280
  • Paul Ng’ang’a and 2 Others vs Attorney General and 3 Others
    [2013] eKLR
  • Young vs Hillary
    1895 P 87/90
  • Major Tiyefunza vs Attorney General, Petition No 1 of 2003
  • Mumo Matemu vs Trusted Society of Human Rights Alliance and 5 Others, Civil Appeal No. 290 of 2012
  • Anarita Karimi Njeru vs Republic
    [1979] KLR 154
  • Trusted Society of Human Rights Alliance vs Attorney General and 2 Others
    [2012] eKLR
  • Trusted Society of Human Rights Alliance vs Attorney General and Others, Nairobi Petition 229 of 2012
    Unreported
  • Mohamed Osman Warfa and Others vs The Office of the President and Others, H.C Petition No.77 of 2013
  • Evans Nyambega Akuma vs AG and Others, Nairobi Petition No.164 of 2013
    unreported
  • John Waweru Wanjohi & Others vs the AG & Others; Kipngetich Maiyo & Others vs The Kenya Land Commission Selection Panel, consolidated Petitions Nos. 373 of 2012 and 426 of 2012
    unreported
  • Consortium for the Empowerment and Development of Marginalised Communities & Others vs Chairman the Selection Panel for appointment of chairperson and Commissioner to the Kenya National Human Rights Commission, High Court Petition No. 385 of 2012
  • Thorp vs Holdsworth
    (1876) 3 Ch. D. 637
Jurisdiction invoked
Article 165 of the Constitution (enforcement of fundamental rights and constitutional violations); Articles 22 and 23 relied on by the petitioners

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, "Kenya Council of Employment and Migration Agency & another v National Police Service Commission & 6 others [2016] KEELRC 1761 (KLR)", Case Analysis (2016). Petition (Nairobi), number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1761/eng@2016-01-28

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