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ELRCPartially AllowedPetition No. 9 of 2017· [2018] KEELRC 1540 (KLR)

Peter Kemboi Chemos v National Police Service Commission [2018] KEELRC 1540 (KLR)

Employment and Labour Relations Court of Kenya
30 May 2018
HWHellen S. Wasilwa
6,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated an Administration Police officer removed after flawed vetting, ruling that decision-makers must personally hear the officer they judge.

What this practically means

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Executive summary

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Peter Kemboi Chemos, an Assistant Superintendent in the Administration Police Service, petitioned the Employment and Labour Relations Court alleging that his removal from the National Police Service after failing vetting violated his rights under Articles 41, 47(1) and (2) and 50(1) of the Constitution. He was vetted on 24.8.2015 by a panel chaired by Commissioner Murshid Mohammed, re-vetted on 1.12.2015 by a differently constituted panel, and removed by a decision dated 14.1.2016 signed by six Commissioners, two of whom had never sat in any panel that heard him. The Respondent defended the vetting as properly mandated under Section 7 of the National Police Service Act and the Vetting Regulations 2013, asserting the Petitioner could not explain Mpesa deposits of approximately 18 million shillings far exceeding his declared income. The court framed three issues: whether the panel was legally constituted, whether the vetting followed due procedure, and whether the Petitioner was entitled to the orders sought. The court held the panel was properly constituted since the Regulations prescribe no quorum, but found the process procedurally unfair: the Petitioner was never given notice of the adverse financial analysis relied upon, breaching Article 50(2), and the decision was signed by Commissioners who never heard him, breaching the audi alteram partem rule. The court declared the Petitioner's rights violated, quashed the vetting and review decisions by certiorari, ordered his reinstatement without loss of rank with all privileges and salary, and awarded him costs. Compensation sought in the Petition was not included in the final orders.

Key legal issues

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01

Whether the Vetting Panel was properly constituted

Holding

The panel was properly constituted since the Vetting Regulations do not prescribe a quorum; so long as the panel was constituted as the Commission determined, it was properly constituted.

Reasoning

The court examined Regulation 10 of the Vetting Regulations, which allows the Commission to constitute panels of such numbers and persons as it determines. Since the Regulations are silent on quorum, the mere change in panel membership did not of itself render the panel improperly constituted. The challenge on composition therefore failed on this ground, though the separate defect of non-participating signatories to the decision succeeded.

p. 7
02

Whether the vetting was carried out in accordance with the law and proper procedure

Holding

The vetting process violated the Petitioner's rights to fair hearing and fair administrative action: he was not given notice of adverse information and the decision was signed by Commissioners who never heard him.

Reasoning

The court found that the Respondent never disclosed the adverse financial analysis relied upon, leaving the Petitioner to be ambushed with questions on two years of Mpesa and bank transactions. Further, Commissioners Boinnet and Arachi signed the vetting decision though they never sat on any panel that heard the Petitioner, and the review perpetuated the same illegality. This breached Articles 41, 47 and 50(1) of the Constitution and the Fair Administrative Action Act.

p. 9
03

Whether the Petitioner is entitled to the orders sought

Holding

The Petitioner was entitled to the declaration, certiorari quashing the vetting and review decisions, and reinstatement without loss of rank.

Reasoning

Having found violations of the right to fair hearing and fair administrative action, and that the Respondent failed to correct its mistakes on review, the court granted the consequential remedies of certiorari and reinstatement, together with costs. The remedy of substituting a finding that no basis existed to find the Petitioner had failed vetting was also granted.

p. 9

Legal principles established

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  • A decision on a vetting exercise must be made by the same panel that heard the officer; persons who did not sit in the hearing cannot sign the decision, as that violates the audi alteram partem rule.
  • An officer facing vetting must be given sufficient details of adverse information against him to enable him answer it, as required by Article 50(2)(b) of the Constitution.

Court orders

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  1. 1.A Declaration that the Petitioner's rights under Article 47(1), 41(1) and 50(1) of the Constitution were violated by the Respondent who rendered a decision finding him unsuitable to serve in the National Police Service without following due process and without according him a fair hearing.
  2. 2.An Order of Certiorari to remove into this Court for purposes of being quashed the proceedings leading to and the determination and decision of the Respondent dated 14.1.2016 and 6.12.2016 rendering the Petitioner unsuitable to serve in the Administration Police Service.
  3. 3.An order for reinstatement of the Petitioner to his post as an Assistant Superintendent of the Administration Police Service with reinstatement of all his privileges including his salary and with no loss of rank effective immediately.
  4. 4.An order that there exist no reason to find that the Petitioner had failed the vetting.
  5. 5.Costs of the Petition awarded to the Petitioner.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 10, 246(3)(b), 27, 35(1), 41, 47(1) and (2), 50(1) and 50(2), 162(2), 165(6) and (7), 232
  • National Police Service ActSection 7(1), 7(3)
  • National Police Service (Vetting) Regulations 2013Regulations 3, 4, 9(2)(d), 10, 14, 15, 18(2), 28, 30, 32, 33(2)(a)
  • Fair Administrative Action ActSection 4(1), 4(3), 4(4), 7(2)(a)(i)
  • Public Officer Ethics Act, 2003Declaration of Income, Assets and Liabilities
  • Police Act (Cap 84)
  • Administration Police Act (Cap 85)

Cases cited (5)

  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR 1272
  • Meme vs Republic and Another
    (2004) eKLR
  • County Assembly of Kisumu vs Kisumu County Assembly Service Board and Others
    Court of Appeal Case No. 17 and 18 of 2015 (Kisumu)
  • Kanda v. Government of Malaya
  • Eusebius Laibuta vs National Police Service Commission
    Petition No. 79 of 2014
Jurisdiction invoked
Articles 162(2) and 165(6) and (7) of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Kemboi Chemos v National Police Service Commission [2018] KEELRC 1540 (KLR)", Case Analysis (2018). Petition No. 9 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1540/eng@2018-05-30

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