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ELRCDismissedPetition No E060 of 2020· [2021] KEELRC 1964 (KLR)

Polycarp Akoko Ochieng v National Police Service Commission [2021] KEELRC 1964 (KLR)

High Court of Kenya
16 March 2021
NMNzioki wa Makau
2,340 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed a former police officer's challenge to his vetting-based removal, ruling he received a fair hearing and no rights were violated.

What this practically means

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Executive summary

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The Petitioner, a former Chief Inspector of Police, petitioned the High Court against the National Police Service Commission challenging his removal from the Police Service following a vetting exercise conducted on 23rd August 2016 under the National Police Service (Vetting) Regulations, 2013, and an unsuccessful review on 13th July 2017. He sought declarations that both the vetting and review violated Articles 10, 27, 41, 47 and 50 of the Constitution, certiorari to quash the removal letter of 22nd May 2018, reinstatement with back pay, and compensation for pain, suffering and loss of reputation. He complained that the vetting panel lacked quorum, that the decision was written and signed by a Commissioner who did not participate in the interview, that the review panel was improperly constituted, that he lacked notice, legal representation, and an opportunity to cross-examine an adverse witness, and that his spouse's bank statement and the timing of his wealth declaration were ignored, resulting in a wrongful finding of disparity in wealth. The petition was dispensed with by written submissions. The Court held that the record showed the Petitioner was given opportunity to be heard at both the vetting and the review, that the duration of the hearings as recorded rebutted claims that he was heard for a mere 7 minutes, and that the review confirmed removal because he presented no new material. The Court found nothing indicative of abridgment of his constitutional rights and dismissed the petition with costs to the Respondent.

Key legal issues

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01

Whether the Petitioner was denied a fair hearing during vetting and review

Holding

The Court held the Petitioner was heard both at the vetting and at the review; no abridgment of rights was established

Reasoning

The Court examined the record and found the Petitioner was given time to refute allegations of financial impropriety regarding his Mpesa statements. On review he was heard for 26 minutes on the question of new evidence. The meetings' timing on the record demonstrated he was heard, and the review confirmed removal for want of new material. The Court found nothing indicative of abridgment of constitutional rights.

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02

Whether the failure to present new material justified upholding the removal on review

Holding

Since the Petitioner presented no new material, the review panel properly confirmed the removal

Reasoning

The Petitioner on review explained sources of income, admitting his wealth declaration excluded per diem income as an oversight. The review panel chaired by Commissioner Ronald Musengi considered the new material presented on 13th July 2017, and the Commission Board on 7th November 2017 confirmed removal because no new material was presented. The Court found this sufficient.

p. 3

Legal principles established

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  • A party who is given an opportunity to be heard and explain himself before an administrative panel cannot later claim abridgment of constitutional rights
  • The duration of a hearing, if reasonable and reflected in the record, rebuts a claim that a party was not heard

Court orders

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  1. 1.The Petition dated 30th September 2020 is dismissed
  2. 2.Costs of the Petition awarded to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 19, 20, 21, 22, 23, 258(2)(c), 27, 28, 41, 47, 50
  • National Police Service ActSection 14; Second Schedule paragraph 3
  • National Police Service (Vetting) Regulations, 2013Regulations 7, 14, 10(1), 10(2), 25(4)
  • Fair Administrative Action ActSections 4(3)(a), 4(3)(e), 4(3)(g)

Cases cited (4)

  • Eusebius Karuti Laibuta v National Police Service Commission
    [2014] eKLR, Petition No. 79 of 2014
  • Peter Kemboi Chemos v National Police Service Commission
    [2018] eKLR, Petition No. 9 of 2017
  • A. N. N v Attorney General
    [2013] eKLR, Petition 240 of 2010
  • Republic v National Land Commission & Another Ex Parte Farmers Choice Limited
    [2020] eKLR, Judicial Review 6 of 2019
Jurisdiction invoked
Articles 19, 20, 21, 22, 23, 258(2)(c) of the Constitution of Kenya (enforcement of Bill of Rights) and Article 23

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, "Polycarp Akoko Ochieng v National Police Service Commission [2021] KEELRC 1964 (KLR)", Case Analysis (2021). Petition No E060 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1964/eng@2021-03-16

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