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ELRCDismissedPetition dated 30th April 2018 (number not stated in judgment)· [2019] KEELRC 1474 (KLR)

Thomas Odero Dullo v National Police Service Commission [2019] KEELRC 1474 (KLR)

Employment and Labour Relations Court (as presided over by Maureen Onyango, Judge; court not expressly named in the judgment)
24 May 2019
MOMaureen Onyango
4,360 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A police officer removed after failing vetting lost his court challenge because the process was found fair, lawful, and properly documented.

What this practically means

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Executive summary

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The Petitioner, a former Corporal in the Kenya Police Service last stationed at Maseno Police Station, petitioned against his removal from the Service after the National Police Service Commission found him unsuitable in a vetting decision delivered on 17th November 2017, a decision upheld on review. He sought declarations of violation of Articles 41, 47 and 50(1) of the Constitution, certiorari to quash the vetting and review decisions, reinstatement with salary and privileges, substitution of the Commission's decision, compensation and costs. He alleged that he was not given notice of adverse information, was denied the chance to cross-examine Corporal Rosina Mkakisha Mganga, faced a mutating panel whose decision was rubberstamped by commissioners who did not sit, was not given reasons, and that the standard of proof in vetting was not met. The Respondent, through a replying affidavit of Chairman Johnston Kavuludi, explained that removal was based on a drastic change in income of over Kshs.6 million, huge and frequent Mpesa transactions with a colleague officer, and inconsistent explanations, including a contract with Highway Emporium rather than Sameer Africa as claimed. The court framed three issues: fair administrative action and fair hearing; lawfulness of the removal; and entitlement to remedies. It held the Petitioner was vetted on documents he himself submitted, knew the purpose of the vetting, and had an opportunity to be heard, as evidenced by the Hansard. Commissioner Musengi's presence on the review panel was established, and failure to ask questions did not bar him from signing. The petition was dismissed, with each party bearing its own costs.

Key legal issues

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01

Whether the Petitioner's right to fair administrative action under Article 47 and the Fair Administrative Actions Act was violated

Holding

No violation; the Petitioner knew the purpose of the vetting, was given a chance to explain himself, and the Hansard showed a fair hearing

Reasoning

The court reviewed Section 4 of the Fair Administrative Actions Act and Article 47. It found the Petitioner completed and submitted a vetting questionnaire, understood the purpose of the vetting, appeared before the panel, was questioned on documents he himself had supplied, and was heard at review. The Hansard demonstrated a hearing was conducted and a reasoned determination made, so the requirements of prior notice and opportunity to be heard were satisfied.

p. 5
02

Whether the removal decision was lawfully arrived at, including the complaint that the panel mutated and non-sitting commissioners signed the decision

Holding

Removal was lawful under Regulations 14(2) and 15; Commissioner Musengi was present per the review Hansard, and failure to ask questions did not disqualify him from signing

Reasoning

The Respondent explained via the replying affidavit of Chairman Kavuludi that the review Hansard shows Commissioner Musengi was present on the panel though he did not ask questions. The court accepted this explanation, holding that non-participation in questioning does not negate the right to sign the decision, distinguishing Peter Ndegwa Githinji on the facts.

p. 6
03

Whether the Petitioner was entitled to the remedies sought

Holding

No; the petition had no merit and was dismissed

Reasoning

Having found no violation of rights and a lawful, procedural and fair process with a well-explained decision, the court held the Petitioner was not entitled to any of the remedies sought, including declaration, certiorari, reinstatement or compensation, and dismissed the petition with each party bearing its own costs.

p. 6

Legal principles established

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  • Administrative and decision-making bodies are masters of their own procedures provided they achieve the degree of fairness appropriate to their task, but those procedures must accord with the law and natural justice.
  • Where an officer is vetted on documents he himself submitted, the duty to supply documents and complaints under the vetting regulations is not triggered, and questioning him on the contents of those documents is not unfair.
  • Failure by a commissioner to ask questions during a vetting or review hearing does not disqualify that commissioner from signing the resulting decision.
  • Procedural fairness is a contextual, flexible principle with no rigid or universal rules.

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear its costs
Jurisdiction invoked
Original constitutional petition jurisdiction (Articles 41, 47 and 50(1) of the Constitution; Fair Administrative Actions Act) - not expressly stated in the judgment

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, "Thomas Odero Dullo v National Police Service Commission [2019] KEELRC 1474 (KLR)", Case Analysis (2019). Petition dated 30th April 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1474/eng@2019-05-24

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