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ELRCPartially AllowedPetition 85 of 2016· [2018] KEELRC 1303 (KLR)

Benard Bariu Kobia v National Police Service Commission [2018] KEELRC 1303 (KLR)

Employment and Labour Relations Court of Kenya
2 March 2018
ANAbuodha J N
4,345 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 reinstated a police officer removed by flawed vetting, holding that secret allegations used to dismiss him violated natural justice.

What this practically means

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Executive summary

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The petitioner, an Assistant Superintendent in the Administration Police Service, petitioned the Employment and Labour Relations Court challenging his removal from service after failing vetting by the National Police Service Commission, and the upholding of that decision on review. He sought declarations of rights violation, certiorari, reinstatement, and compensation, contending that he was not furnished with the complaints or sufficient particulars, that grounds including collecting protection fees from criminals and running a Miraa kiosk as a drug front were never put to him, that he could not call or cross-examine witnesses, and that the panel was improperly composed with the decision signed by commissioners who did not sit. The respondent, through its chairman's affidavit, maintained the vetting was mandated by article 246(3)(b) of the Constitution and the Vetting Regulations, that the petitioner received the complaint summary and had over a month to respond, that strict rules of evidence did not apply, and that the panel was properly constituted per the Okutoyi decision. The court, reviewing the complaint summary sheet and Hansard transcript, found that two of the most serious grounds for removal were never presented to the petitioner, that the complaint summary lacked particulars, and that the commission made no analysis of the petitioner's responses, suggesting predetermination. It adopted Odunga J's reasoning on panel composition. The court declared both the vetting and review decisions null and void, ordered fresh vetting, reinstated the petitioner with effect from 9 October 2015 on paid leave pending fresh vetting, and awarded him costs.

Key legal issues

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01

Adequacy of particulars of complaints supplied to the officer facing vetting

Holding

The petitioner was not supplied with sufficient particulars of the complaints or accompanying documents; two of the grounds for removal were never put to him.

Reasoning

The court reviewed the complaint summary sheet and the Hansard transcription and found that the allegations of collecting protection fees from criminals and of operating a drug front through a Miraa kiosk were not presented to the petitioner to answer. The summary sheet was too generalised, lacking particulars, and the commission's findings appeared predetermined or informed by evidence never disclosed to the petitioner.

p. 5
02

Consideration of the officer's responses by the commission

Holding

The commission failed to take into account or analyse the petitioner's responses to the allegations of sexual harassment and drug trafficking.

Reasoning

The petitioner had reasonably responded, denied serving in Kwale (which the respondent admitted was erroneous), produced photographs of drug seizures and explained his transfer from Lamu Island as following Al-shabaab attacks. The commission made no analysis of these responses, indicating a predetermined verdict or reliance on undisclosed evidence.

p. 5
03

Composition of the vetting panel and signing of the decision

Holding

The vetting panel was properly constituted; the court adopted Justice Odunga's reasoning in the Immanuel Masinde Okutoyi case without adding to it.

Reasoning

The respondent relied on section 13 of the National Police Service Act and regulation 25(4) of the Vetting Regulations permitting committees/panels and signing by all commissioners. The court stated it was fully persuaded by Odunga J's position in the Okutoyi case and had nothing useful to add, thereby rejecting the petitioner's challenge to the panel's composition.

p. 6

Legal principles established

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  • A person accused must know the nature of the accusation and be given an opportunity to state his case.
  • Grounds not presented to an officer for response cannot be used as grounds for removal following vetting.

Court orders

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  1. 1.Declaration that the vetting decision dated 9 October 2015 and the review decision dated 5 May 2016 are null and void
  2. 2.Order that the petitioner be vetted afresh in accordance with the Constitution, the Fair Administrative Action Act, the Vetting Regulations and the rules of natural justice
  3. 3.Reinstatement of the petitioner to service with effect from 9 October 2015 with all privileges and salary attached to his office, but remaining on paid leave pending fresh vetting
  4. 4.Costs of the petition to the petitioner
Jurisdiction invoked
Article 23 of the Constitution (enforcement of Bill of Rights) read with articles 41, 47 and 50(1); petition under the Employment and Labour Relations Court's jurisdiction

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, "Benard Bariu Kobia v National Police Service Commission [2018] KEELRC 1303 (KLR)", Case Analysis (2018). Petition 85 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1303/eng@2018-03-02

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