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ELRCPartially AllowedPetition No 17 of 2023· [2023] KEELRC 1241 (KLR)

Katheka v National Police Service Commission & another (Petition 17 of 2023) [2023] KEELRC 1241 (KLR)

Employment and Labour Relations Court
25 May 2023
6,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled police vetting rules that forced officers to hand over self-incriminating evidence, like Mpesa records, were unconstitutional, awarding a removed officer Kshs 4 million.

What this practically means

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Executive summary

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The petitioner, a Chief Inspector of Police, challenged his removal from the National Police Service after failing vetting by the National Police Service Commission, alleging procedural impropriety in the initial vetting of 23.08.2016 and the decision of 06.12.2016, and in the review hearing of 13.07.2017 culminating in the decision of 22.08.2017. He claimed violations of articles 27, 36, 40, 47 and 50, seeking declarations, certiorari, reinstatement, substitution of the vetting decision, compensation and costs. The respondents, through affidavits of Johnston Kavuludi and Albert Masese, justified the vetting on the constitutional and statutory mandate and the petitioner's unexplained Mpesa transactions inconsistent with his declared income. The court found no violation by the 2nd respondent, no breach of natural justice or regulation 18 (as no complaint or adverse information existed), and no irrationality on the freedom of association claim. However, of its own motion, the court held that the vetting regulatory regime, particularly regulation 13, compelled self-incriminating disclosures and reversed the presumption of innocence, unconstitutionally limiting the non-derogable right to fair hearing under article 50, and violating articles 27 and 47(1). The court distinguished Peter Kemboi Chemos and applied the Supreme Court's holding in Gladys Boss Shollei. Certiorari and reinstatement were declined as time barred. Judgment was entered for the petitioner with declarations of violation, a substitution order, Kshs 4 million compensation payable by 01.09.2023 failing interest, and costs against both respondents.

Key legal issues

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01

Whether the vetting regime infringed article 50 (fair hearing/trial) through compelled self-incrimination

Holding

Regulation 13's mandatory provision of documents including Mpesa statements, and the reliance on self-incriminating material, was an unconstitutional limitation of article 50 and violated articles 27 and 47(1).

Reasoning

The court held that officers vetted without any complaint or adverse information were compelled to supply information targeting self-incrimination, had no presumption of innocence, and were denied the right to remain silent. The regime relied solely on unconstitutionally obtained self-incriminating material, was unfair, and the resulting removal decision could not stand.

p. 13
02

Whether there was breach of natural justice under article 47 and regulation 18

Holding

No breach found - regulation 18 did not apply as no complaint or adverse information was received; the petitioner was heard at initial and review hearings based on his own information.

Reasoning

The petitioner attended and participated in the initial vetting on 23.08.2016 and review on 13.07.2017 without complaining of non-supply of adverse information. No accusers existed to cross-examine. The case was distinguished from Peter Kemboi Chemos where adverse information existed. Articles 47 and 50 were not violated on this ground.

p. 11
03

Whether the 1st respondent acted irrationally or unreasonably regarding the petitioner's associations (article 36)

Holding

No irrationality established; the commission was concerned with the integrity of the transactions, not the freedom to associate.

Reasoning

The court found the commission did not undermine the petitioner's entitlement to associate but assessed the purity of the content or agenda of the association as evidenced by the Mpesa transactions. The submission that the petitioner could not be expected to remember old transactions was unfounded since he had not claimed inability to recall.

p. 11
04

Whether the 2nd respondent violated the petitioner's rights

Holding

No evidence that the 2nd respondent violated the petitioner's rights.

Reasoning

The court found the petitioner had not provided material evidence against the 2nd respondent, noting the mutual position that vetting was vested in the 1st respondent as constitutional employer. However, the court later found the framework itself unconstitutional as implemented.

p. 10

Legal principles established

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  • The right to a fair hearing under article 50 applies to vetting and other quasi-judicial processes despite their civil nature and cannot be limited.
  • A statutory or regulatory regime compelling officers to furnish self-incriminating information as a condition of vetting is unconstitutional.
  • Regulation 18(2) of the Vetting Regulations applies only where a complaint or adverse information was actually received; it does not apply where vetting is based on the officer's own supplied information.

Court orders

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  1. 1.Declaration that the petitioner's fundamental freedoms and rights were infringed by the 1st respondent, in particular violation of articles 27, 47(1) and 50
  2. 2.Declaration that the 1st respondent's vetting process and decision violated the petitioner's fundamental rights under articles 27, 47(1) and 50
  3. 3.Order substituting the respondent's decision with a declaration that there exists no lawful material to find that the petitioner had failed vetting
  4. 4.1st and 2nd respondents jointly or severally to pay the petitioner Kshs 4,000,000.00 compensation for breach of constitutional rights, payable by 01.09.2023 failing interest at court rates from date of judgment until full payment
  5. 5.1st and 2nd respondents jointly or severally to pay the petitioner's costs of the petition

Authorities

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Legislation

  • Constitution of Kenyaarticles 10, 19, 20, 23, 24, 25, 27, 35, 36, 40, 47, 50, 232, 238, 246(3)(b)
  • National Police Service (Vetting) Regulations, 2013regulations 3, 4, 7, 8, 9, 13, 14, 15, 18, 32, 33
  • National Police Service Actsection 7 (including 7(2), 7(3))
  • National Police Service Commission Actnot specified
  • Fair Administrative Action Actnot specified
  • Public Officer Ethics Actnot specified
  • Police Actnot specified
  • Administration Police Actnot specified
  • Civil Procedure Rulesorder 53
  • Employment and Labour Relations Court (Procedure) Rules / applicable Actsection 12(3)(vii)

Cases cited (4)

  • Peter Kemboi Chemos –Versus- National Police Service Commission
    [2018]eKLR
  • Gladys Boss Shollei –Versus- Judicial Service Commission & Another
    Petition No 34 of 2014 [2022] KESC5 (KLR) (17 February 2022)
  • Julius Ndegwa v National Police Service Commission & another
    [2020] eKLR
  • Sebastian Kirunya Limbitu v National Police Service Commission & Another
    [2017] eKLR
On appeal from
High Court at Nairobi
Petition dated 09.04.2018 (transferred by Ong'udi J on 26.01.2023)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the petition transferred from the High Court (petition arising from removal of a police officer from service)

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, "Katheka v National Police Service Commission & another (Petition 17 of 2023) [2023] KEELRC 1241 (KLR)", Case Analysis (2023). Petition No 17 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1241/eng@2023-05-25

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