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ELRCPartially AllowedPetition No 66 of 2017· [2019] KEELRC 2612 (KLR)

Shedrack Mutwetumo Maithya v National Police Service Commission [2019] KEELRC 2612 (KLR)

Employment and Labour Relations Court
5 July 2019
3,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court found police vetting flawed because officials who never attended the hearing signed the removal decision, entitling the officer to compensation and full benefits.

What this practically means

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Executive summary

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The Petitioner, a Senior Superintendent removed from the National Police Service on 5th May 2016 after failing vetting conducted on 23rd March 2015 and reviewed on 2nd February 2016, challenged the removal as violating articles 27, 47 and 50 of the Constitution. He sought declarations of invalidity, certiorari, re-vetting, compensation and costs. The Respondent, through the Replying Affidavit of its then Chairman Johnston Kavuludi, maintained that the vetting complied with Regulation 14(2)(c) of the Vetting Regulations and that procedural fairness was observed. The court adopted the three broad issues of fairness, unreasonableness, and bias. It found for the Petitioner on two grounds: the vetting decision was signed by commissioners who did not sit at the vetting, a procedural defect sufficient to vitiate the decision, consistent with Francis Omondi Okonya and the Laibuta and Media Council decisions; and the finding of undervaluation of his Kangundo property was unjustified because the Commission never obtained an independent valuation despite being empowered to do so. However, the court found the Petitioner's failure to furnish additional information, the unexplained discrepancy between the parties' copies of the Wealth Declaration Form, and the failure to submit spouse declaration forms raised doubts about his honesty. Bias, discrimination and cross-examination claims failed. Reinstatement and mandamus were refused given the time lapse and his impending retirement age. The court ordered that he be retired with effect from 5th May 2016, with benefits computed to 20th May 2020, awarded Kshs 1.5 million compensation, and ordered the respondent to pay costs.

Key legal issues

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01

Whether the decision was invalid because commissioners who did not sit at the vetting signed it

Holding

Yes - the signing of the decision by commissioners who did not participate in the vetting hearing was a procedural defect sufficient to vitiate the decision

Reasoning

Regulation 25(4) requires decisions to be signed by all commissioners who decided the matter. The record showed signatories who never sat at the vetting. Relying on Francis Omondi Okonya and Laibuta, the court held that persons who did not participate in the hearing could not lawfully make the decision, and there was no evidence the panel's decision was presented to and adopted by the Commission.

p. 4
02

Whether the finding that the petitioner undervalued his Kangundo property was justified

Holding

No - the Commission ought to have obtained an independent valuation under Regulation 28 before dismissing the petitioner for undervaluation

Reasoning

Regulation 28 empowered the Commission to engage experts or investigating agencies; Regulation 23 permitted suspension of vetting to obtain valuation reports. None of this was done, and all the declaration required was location and approximate value, which the petitioner gave. The undervaluation/concealment finding was therefore without justification.

p. 4
03

Whether the petitioner was dishonest in respect of his Wealth Declaration Form and other disclosures

Holding

Partly - the discrepancy between the Wealth Declaration Forms filed by the parties raised doubts of dishonesty which remained unexplained

Reasoning

The petitioner's copy included four Nairobi plots worth Kshs 2 million absent from the Commission's copy, affirming concerns during vetting that some properties were missing, and no explanation was given. He also failed to furnish additional information requested on 14th September 2015, and failed to submit spouse declaration forms.

p. 4
04

Whether there was denial of the right to cross-examine and bias by the Commissioners

Holding

No - there was no complainant who testified and no request for cross-examination, and the comments cited did not establish bias

Reasoning

The court found no complainant testified at the vetting and no request was made to call witnesses. The remarks attributed to Commissioners Mary Owuor and Murshid were not proof of bias or lack of objectivity.

p. 4
05

What remedy is appropriate given the procedural defects

Holding

Reinstatement and mandamus refused; instead retirement in effect from 5th May 2016 with benefits computed to 20th May 2020, plus Kshs 1.5 million compensation

Reasoning

The procedural defects did not justify mandamus, and given the lapse of time and the petitioner attaining retirement age on 20th May 2020, reinstatement would not be just. The court substituted retirement in effect from the vetting-out date with benefits based on the actual retirement date, and awarded compensation.

p. 5

Legal principles established

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  • A decision signed by commissioners who did not participate in the vetting hearing is procedurally defective and vitiates the decision
  • Where the Commission alleges undervaluation of assets, it must demonstrate this by an independent valuation before dismissing an officer

Court orders

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  1. 1.The petitioner to be retired with effect from the date of his vetting out, 5th May 2016
  2. 2.The petitioner's retirement benefits to be based on the actual retirement date of 20th May 2020
  3. 3.The respondent to pay the petitioner Kshs. 1.5 million as compensation
  4. 4.The respondent to pay the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenyaarticles 27, 47 and 50
  • National Police Service (Vetting) Regulations, 2013Regulation 14(2)(c)
  • National Police Service (Vetting) Regulations, 2013Regulation 25(4)
  • National Police Service (Vetting) RegulationsRegulation 28
  • National Police Service (Vetting) RegulationsRegulation 23

Cases cited (4)

  • Anarita Karimi Njeru v Republic
    (1976-1980) 1 KLR 1272 eKLR
  • Francis Omondi Okonya v National Police Service Commission
    [2016] eKLR
  • Eusebius Karuti Laibuta vs National Police Service Commission
    [2014] eKLR
  • Republic vs Complaints Commission, Media Council for Kenya and 2 Others
    [2013] eKLR
Jurisdiction invoked
Constitution of Kenya, articles 27, 47 and 50 (rights invoked by the Petitioner); petition jurisdiction of the High Court/ELRC

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, "Shedrack Mutwetumo Maithya v National Police Service Commission [2019] KEELRC 2612 (KLR)", Case Analysis (2019). Petition No 66 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2612/eng@2019-07-05

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