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ELRCPartially AllowedApplication dated 17.1.2017 in Petition dated 5.2.2016· [2018] KEELRC 2178 (KLR)

Lawrence Mwaura Njoroge v National Police Service Commission [2018] KEELRC 2178 (KLR)

Employment and Labour Relations Court
8 March 2018
HWHellen Wasilwa
2,130 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on an interlocutory application dated 17.1.2017 brought under Rule 23(1) of the Constitution of Kenya (Practice & Procedure) Rules 2013 by a Senior Superintendent of Police against the National Police Service Commission. The Applicant sought urgent stay of his removal from the payroll and of the Respondent's decisions of 16.11.2016 and 16.12.2016, an order compelling the Respondent to supply minutes of its board meeting of 6.12.2016, and leave to amend his Petition dated 5.2.2016. He contended that the vetting and review process was flawed, biased and intimidatory, that he was denied a fair hearing, not served with the Commissioners' recommendations, and not afforded investigations as required by the National Police Service (Vetting) Regulations 2013. The Respondent, through its Chairman's replying affidavit, maintained that the vetting was a constitutional and statutory requirement, that the review hearing of 19.10.2016 was conducted fairly (the Applicant having confirmed he was willing to proceed despite ill health), and that the Applicant was found unfit to serve on account of financial probity, being unable to account for frequent cash and cheque deposits. Ruling on 8 March 2018, Lady Justice Hellen Wasilwa applied the Giella vs Cassman Brown principles for interlocutory relief, found the alleged flaws in the vetting process to be a triable issue not determinable at the interlocutory stage, and held there was nothing to stay as the Applicant had already been removed from the payroll. The court allowed only the prayer for leave to amend the Petition and declined all other prayers. No costs order was recorded.

Key legal issues

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01

Whether the Applicant established grounds for interim stay of the Respondent's vetting/removal decision

Holding

Stay refused because the removal from the payroll had already taken effect, leaving nothing to stay

Reasoning

The court treated the application as interlocutory and applied the Giella vs Cassman Brown principles. It found the allegation that the vetting process was flawed and that the Applicant was not given an adequate opportunity to present his case to be a triable issue, but one that could not be established at the interlocutory stage without a full hearing. On the stay, the operative fact of removal from the payroll rendered the prayer moot, so the court declined it along with the remaining prayers.

p. 4
02

Whether the Applicant should be granted leave to amend his Petition

Holding

Leave to amend allowed

Reasoning

The court held that amendment is an allowable prayer since no party should be denied the right to present his case, and directed the Applicant to amend the Petition. This was the only prayer granted, the court allowing the application in part.

p. 4

Legal principles established

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  • The three principles governing the grant of interlocutory injunctions are those in Giella vs Cassman Brown
  • No party should be denied the right to present his case, and leave to amend a pleading is an allowable prayer

Court orders

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  1. 1.The prayer granting the Applicant leave to amend his Petition is allowed
  2. 2.The Applicant/Petitioner is directed to amend his Petition
  3. 3.All other prayers in the application are declined

Authorities

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Legislation

  • Constitution of Kenya 2010Article 35; Article 10; Article 232; Chapter 6
  • Constitution of Kenya (Practice & Procedure) Rules 2013Rule 23(1)
  • National Police Service (Vetting) Regulations 2013Regulations 4(e),(g); 9; 10(1); 14(c); 18; 18(2); 28; 34
  • National Police Service ActSection 7
  • National Police Service Commission ActSections 10; 33

Cases cited (6)

  • Giella vs Cassman Brown
    (1973) E.A 358
  • Anarita Karimi Njeru vs The Republic
    (1976-1980) KLR 172
  • Immanuel Masinde Okutoyi & Others v National Police Service Commission & Another
    (2014) eKLR
  • Margaret Nyaruai Theuri vs National Police Service Commission
    JR No. 1 of 2016
  • Daniel Chacha Chacha vs National Police Service Commission
    JR No. 36 of 2016
  • Stephen Kiptanui Arap Soi
    JR No. 51 of 2016
Jurisdiction invoked
Rule 23(1) of the Constitution of Kenya (Practice & Procedure) Rules 2013

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, "Lawrence Mwaura Njoroge v National Police Service Commission [2018] KEELRC 2178 (KLR)", Case Analysis (2018). Application dated 17.1.2017 in Petition dated 5.2.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2178/eng@2018-03-08

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