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ELRCAllowedJudicial Review Application (ELC Rule 28 [1] [a], Employment & Labour Relations Court Rules 2016 - Motion for Certiorari and Prohibition)· [2017] KEELRC 1772 (KLR)

Republic v National Police Service Commission & 3 others Ex- parte Joel Atuti Nyakango & another [2017] KEELRC 1772 (KLR)

Employment and Labour Relations Court of Kenya
17 February 2017
8,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court quashed the dismissal of two police officers because their disciplinary hearing broke basic fairness rules.

What this practically means

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Executive summary

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Two Traffic Officers stationed at Makupa Police Station, Mombasa, were arrested on 10th January 2016 after allegedly obstructing the Presidential Motorcade and being seen receiving a bribe from a Matatu crew they had arrested. They faced Police Orderly Room Proceedings before individual officers, ASSP Geoffrey Walumbe and SP Zacchaeus Ng'eno, between 11th and 15th January 2016, while held in custody throughout. Walumbe acquitted the 2nd Applicant of corruption but found him guilty of negligence; Ng'eno found the 1st Applicant guilty as charged on both counts. Coast Regional Police Commander Francis Mwangi dismissed both Officers with loss of benefits on 15th January 2016. The National Police Service Commission advised that Mwangi had acted ultra vires, but its Board nonetheless resolved on 28th January 2016 to dismiss the Applicants, relying on the same proceedings it had faulted. The Applicants sought certiorari and prohibition. The Court found the application was not premature, as their appeals had been rendered redundant by the Commission's own concession of illegality. The disciplinary process violated the National Police Service Commission (Discipline) Regulations 2015: no properly constituted Disciplinary Committees sat, Presiding Officers acted as prosecutors, waiver of notice was unjustified, and the Applicants were detained during hearing, breaching Articles 47 and 50. The decisions were also irrational, contradicted by the evidence including that of the Presidential Escort. The Court granted certiorari quashing all the dismissal decisions, and prohibition against fresh proceedings, with costs to the Applicants.

Key legal issues

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01

Exhaustion of internal appeal remedies

Holding

The Application was not premature; the Appeals became redundant once the Commission itself conceded the impugned decisions were illegal.

Reasoning

The Applicants appealed to the Deputy Inspector General on 19th January 2016, but before those Appeals were considered, the Commission advised that the Regional Commander's decisions were ultra vires and could not stand. The Decisions appealed against were rendered redundant, so there were no Appeals capable of being pursued and judicial review was properly and maturely before the Court.

p. 9
02

Compliance with the National Police Service Commission (Discipline) Regulations 2015

Holding

The disciplinary proceedings were procedurally improper and illegal: no properly constituted Disciplinary Committees sat; Presiding Officers acted as prosecutors; waiver of 7 days' notice was not justified in writing; and officers were tried while in custody.

Reasoning

The Officers were heard by individual officers, Walumbe and Ng'eno, rather than by properly constituted Subordinate Disciplinary Committees. The Presiding Officers led and re-examined witnesses without a prosecutor. Waiver notices were signed but no reasons for waiver were recorded. The Applicants were held in custody throughout the 5-day hearing, depriving them of fair administrative action under Article 47 and fair hearing under Article 50.

p. 12
03

Irrationality of the dismissal decisions

Holding

The decisions of Coast Regional Police Commander Mwangi and the Commission were irrational, founded on irrelevant matters and contrary to the evidence.

Reasoning

Mwangi asserted the existence of civilian witnesses who saw a bribe, though no such record exists, and raised unfounded fears of national disaster. The evidence showed three vehicles of the Presidential convoy had already passed the Applicants' parked vehicle, and the convoy was slowed by a pothole, not by the Applicants. The Commission endorsed the sacking on the sole ground of obstruction, relying on the same proceedings it had itself faulted as illegal.

p. 14
04

Effect of the Commission's purported rescission of the dismissal

Holding

The Commission's advice did not cure the defects; there were no fresh proceedings and the flawed decisions remained the foundation of the dismissal.

Reasoning

The Commission asked the Inspector General to rectify the paperwork and endorsed a process flawed to the core. No resolution of the Board annulling Mwangi's decisions was shown, the Applicants were never informed of the rescission or how they would participate in a second process, and the claim of fresh disciplinary proceedings was contradicted by the record.

p. 14

Legal principles established

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  • Any Regulation suggesting the Inspector General could take final disciplinary action against a Police Officer without recourse to the National Police Service Commission is void to the extent of inconsistency with Article 246 para 3 [b] of the Constitution.
  • Where the initial disciplinary process is tainted with illegality, review by the Commission must direct fresh proceedings with defects corrected, not endorse the flawed process.
  • An Accused Officer cannot be required to file a decision that came from a process in which he did not take part.

Court orders

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  1. 1.Amendment of the Notice of Motion so that the date of the incident reads 10th January 2016 in place of 11th January 2016
  2. 2.An order of Certiorari quashing the proceedings leading to, and the determinations dated 13th January 2016, 15th January 2016 and 28th January 2016 dismissing the Applicants from Police Service
  3. 3.An order of Prohibition prohibiting the Respondents and their agents from instituting, commencing or attempting to commence disciplinary proceedings against the Applicants with regard to the incident of 10th January 2016
  4. 4.Costs to the Applicants

Authorities

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Legislation

  • Employment and Labour Relations Court Rules 2016Rule 28 [1] [a]
  • Constitution of KenyaArticles 47, 50, 246 [3] [b]
  • National Police Service Act 2011Sections 49 [4], 49 [10], 88 (2) Sub-Regulation 1 (t), 88 [2) Sub-Regulation 1 (a a), 89 [6]
  • National Police Service Commission [Discipline] Regulations 2015Regulations 3, 4, 7, 8, 9 [4], 16 [1]
  • Civil Procedure RulesOrder 53 [7] [1], Order 53 Rule 7 [1]
  • National Police Service Commission ActSection 89 [1] [f]

Cases cited (12)

  • Speaker of National Assembly v. Njenga Karume
    [2008] 1 KLR 425
  • Trust Bank Limited v. Amin & Company Limited & Another
    [2000] KLR 164
  • Stephen Somek Takwenyi & Another v. David Mbuthia Githare & 2 Others
    Nairobi H.C.C.C. Number 363 of 2009
  • R v. Land Disputes Tribunal, Kajiado North, ex parte Racheal Gathoni Mbai & Another
    Nairobi Miscellaneous Application Number 4 of 2011
  • Pastoli v. Kabale District Local Government Council & Others
    [2008] 2 E.A. 300
  • Municipal Council of Mombasa v Republic & Umoja Consultants Limited
    CA Civil Appeal Number 185 of 2001
  • Joseph Mbalu Mutava v. AG & Another
    Nairobi H.C Petition Number 337 of 2013
  • Lloyd v. McMahon
    [1987] AC 625 at 702
  • Republic v. Kenya Power & Lighting Company Limited & Another
    [2013] e-KLR
  • Council of Civil Service Unions v. Minister for the Civil Service
    [1984] 3 ALL ER 935
  • Associated Provincial Picture Houses Limited v. Wednesbury Corporation
    [1948] 1 K.B. 223
  • Republic v. National Highway Authority & 7 Others
Jurisdiction invoked
Employment and Labour Relations Court Rules 2016, Rule 28 [1] [a]; judicial review jurisdiction over administrative action of the National Police Service Commission

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, "Republic v National Police Service Commission & 3 others Ex- parte Joel Atuti Nyakango & another [2017] KEELRC 1772 (KLR)", Case Analysis (2017). Judicial Review Application (ELC Rule 28 [1] [a], Employment & Labour Relations Court Rules 2016 - Motion for Certiorari and Prohibition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1772/eng@2017-02-17

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