Osman Ali Fankey v National Police Service Commission & 3 others [2019] KEELRC 200 (KLR)
The bottom line
#A Kenyan court refused to jail police bosses for defying employment orders, but paused their implementation while a related criminal case runs its course.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents were in contempt of the interim orders of 13.03.2018 requiring the claimant's retention in employment
No finding of contempt was made. The 1st respondent had issued instructions towards compliance, no contempt was shown against the 4th respondent, and the 2nd and 3rd respondents' participation in consent orders and the ongoing criminal investigations made contempt unjustified.
The Court accepted that the orders were served and known. However, the 1st respondent had written advising reinstatement to avoid contempt; the 4th respondent's role showed no contemptuous act. The parties had recorded consent orders showing intention to compromise, effectively adjourning compliance timelines. The ODPP's direction to prosecute the claimant over allegedly fraudulent disability registration was a serious mitigating factor against committal.
Whether the interim orders of 13.03.2018 should be discharged or their implementation stayed
The Court declined to discharge the interim orders, which remained on record by consent to apply until hearing and determination of the suit, but stayed their implementation till further orders.
There was no application to set aside the interim orders, and they had been extended by consent until determination of the main suit. However, the ODPP's prosecution decision may affect the dispute, and the criminal justice process is distinct from the civil suit. To balance justice in the unique circumstances, the Court stayed implementation of the interim orders pending further orders, with the eventual outcome capable of near-full compensation by accruing payments.
Whether the claimant had retired and whether his registration as a person with disability was genuine
These are matters for resolution at the full hearing of the suit on the parties' evidence, not on the contempt application.
The respondents asserted the claimant retired on 01.07.2017 and that his disability registration was fraudulent, supported by an ODPP decision to prosecute. The Court held that whether the claimant retired and followed due procedure to continue in service after registration as a person with disability are issues requiring evidence at full hearing, and that the prosecution may impact the dispute one way or the other.
Legal principles established
#- Contempt proceedings serve to safeguard the rule of law, not the integrity of the court or the applicant's interests
- Consent orders by parties to compromise a suit and contempt application can amount to adjournment of compliance timelines and negate an intention to disobey court orders
Court orders
#- 1.There is stay of implementation of the relevant interim orders herein till further orders by the Court
- 2.Costs of the application in the cause
- Jurisdiction invoked
- Section 5(a), (b) and 28(1) of the Contempt of Court Act 2016; section 3A of Cap 21; Order 51 Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osman Ali Fankey v National Police Service Commission & 3 others [2019] KEELRC 200 (KLR)", Case Analysis (2019). Application dated 24.05.2018, filed 31.05.2018 (notice of motion filed 09.05.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/200/eng@2019-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.