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ELRCAllowedJudicial Review Notice of Motion dated 20th December 2023· [2024] KEELRC 759 (KLR)

Republic v The National Police Service Commission & 3 others; Monyenye (Exparte Applicant) (Judicial Review E001 of 2023) [2024] KEELRC 759 (KLR)

High Court of Kenya
11 April 2024
JKJ. W. Keli
3,831 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court quashed a police officer's interdiction because he was suspended without being charged or given a hearing first.

What this practically means

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Executive summary

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The Exparte Applicant, a Police Constable attached to Kakamega Police Station Traffic Section, was interdicted effective 27th October 2023 by the Kakamega Central Sub-County Police Commander, Valerian Obore, on allegations that he had been arrested by EACC officers for receiving a Kshs. 2,000 bribe contrary to the Bribery Act. He moved the Court by Notice of Motion seeking certiorari to quash the interdiction letter dated 17th November 2023, contending breach of the rules of natural justice, Articles 27, 28, 41, 47, 50 and 236(b) of the Constitution, section 87 of the National Police Service Act and the National Police Service Commission (Discipline) Regulations, 2015. The respondents entered appearance through Principal State Counsel Stafford Nyauma but filed no response, no submissions and did not appear at the hearing, leaving the applicant's facts unchallenged. The court framed two issues: whether the interdiction complied with the law, and whether the order sought was merited. It held that paragraph 47(2) of the Service Standing Orders permits interdiction only where an officer is accused of an offence of gravity sufficient to warrant dismissal on conviction; the applicant had not been charged over 20 days after the alleged incident, had not been heard, and no Internal Affairs Unit recommendation preceded the decision. The court found the interdiction violated Article 47, section 89(3) of the National Police Service Act and the Standing Orders, and distinguished the pre-amendment decisions in Kazungu Ngumbao and Elizabeth Gathoni while applying the Zelea Jakaa Akiru principle on the right to be heard. Certiorari issued quashing the interdiction; the interdiction was lifted, withheld salaries and benefits were ordered paid forthwith, and each party was to bear its own costs. The respondents were left at liberty to conduct a lawful disciplinary hearing.

Key legal issues

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01

Whether the interdiction was issued in compliance with the law

Holding

No. The interdiction was issued without any charge, without Internal Affairs Unit involvement and without affording the applicant a hearing, contrary to Article 47, section 89(3) of the National Police Service Act and paragraph 47(2) of the Standing Orders.

Reasoning

The court found the applicant was interdicted over 20 days after the alleged incident without being charged or interrogated. Paragraph 47(2) of the Standing Orders permits interdiction only where the officer is accused of an offence of gravity sufficient to warrant dismissal on conviction. Section 89(3) requires disciplinary proceedings to comply with Article 47's fair administrative action guarantees. The Sub-County Commander did not afford the applicant an opportunity to be heard, rendering the decision unlawful.

p. 8
02

Whether the order of certiorari sought was merited

Holding

Yes. The unopposed application was merited and the interdiction decision was quashed.

Reasoning

The respondents entered appearance but filed no response, no submissions and did not appear at the hearing, leaving the applicant's facts unchallenged. Having found the interdiction unlawful for breach of Article 47 and the applicable statutory procedure, the court granted certiorari quashing the interdiction letter and ordered the applicant's reinstatement with all withheld salaries and benefits paid.

p. 9

Legal principles established

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  • A police officer may not be interdicted under paragraph 47(2) of the Service Standing Orders unless accused of an offence of such gravity that dismissal may follow conviction; interdiction without a charge or a hearing breaches Article 47 and section 89(3) of the National Police Service Act.

Court orders

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  1. 1.An Order of Certiorari to remove into the Court and quash the decision of the third respondent conveyed by the Kakamega Sub County Police Officer Commanding Station vide the letter dated 17.11.2023 purporting to interdict the Applicant with effect from 27.10.2023
  2. 2.The interdiction of the Exparte Applicant be lifted and all withheld salaries and benefits be paid forthwith
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27, 28, 41, 47, 50, 236(b), 244, 246(3)(b)
  • National Police Service ActSections 87, 89(3)
  • Bribery Act, 2016Sections 6(1)(a) as read with 18(1)
  • Kenya Police Service Standing Orders (Cap 30 SSO)Paragraph 47(1), 47(2)
  • National Police Service Commission (Discipline) Regulations, 2015 (Legal Notice No. 90)Regulations 3(4), 9(1)-(10)
  • National Police Service Commission ActSection 10(4)

Cases cited (3)

  • Elizabeth Gathoni Murimi & another v DCIO Nakuru Railways Police Station & 3 others
    [2015] eKLR
  • Kazungu Ngumbao Jeremiah & 3 others v Attorney General & 2 others
    (2015) eKLR
  • Republic v Inspector General of Police & 2 others Exparte Zelea Jakaa Akiru
    [2015] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Article 47 of the Constitution and the Fair Administrative Action framework (order of certiorari)

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, "Republic v The National Police Service Commission & 3 others; Monyenye (Exparte Applicant) (Judicial Review E001 of 2023) [2024] KEELRC 759 (KLR)", Case Analysis (2024). Judicial Review Notice of Motion dated 20th December 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/759/eng@2024-04-11

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