Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment· [2024] KEELRC 1519 (KLR)

Republic v National Police Service & another; Nyachiro (Exparte Applicant) (Judicial Review Application E066 of 2020) [2024] KEELRC 1519 (KLR)

Employment and Labour Relations Court
14 June 2024
JRJames Rika
699 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Respondents applied by notice dated 27th October 2023, supported by an affidavit of Assistant Superintendent of Police Henry Gitonga, for review and setting aside of the Court's judgment of 31st May 2023 which had quashed a decision dismissing the Ex-Parte Applicant following disciplinary proceedings. The Respondents argued the judgment was delivered without the benefit of crucial evidence unavailable at hearing, that the Ex-Parte Applicant was guilty of material non-disclosure, and that upholding the judgment would constrain the 1st Respondent's constitutional mandate and burden taxpayers. The Ex-Parte Applicant opposed, asserting there was no new evidence, as the material now relied on had been considered by the Court. The application was canvassed by affidavit and written submissions. The Court found that the Respondents had earlier relied only on Grounds of Opposition and a Notice of Preliminary Objection to the substantive judicial review application, with no explanation for not filing Gitonga's affidavit at that stage. As employer, the 1st Respondent had statutory custody of personnel records and access to all documents from inception. The documents annexed to Gitonga's affidavit were essentially the same as those exhibited by the Ex-Parte Applicant, so the material non-disclosure claim had no foundation. The Court also rejected the submission that the judgment interfered with the Respondents' constitutional mandate, holding compliance burdens flow from the Respondents' own constitutional delinquency. The application dated 27th October 2023 was declined, with no order as to costs.

Key legal issues

#
01

Whether review of judgment is warranted on the ground of evidence said to be unavailable at hearing

Holding

Review was declined; the alleged new evidence was not fresh and was always accessible to the Respondents

Reasoning

The Respondents, as employer with custody of personnel records, had access to all records from inception of the proceedings. The documents exhibited by Gitonga were essentially the same documents exhibited by the Ex-Parte Applicant. The court found no explanation for why Gitonga's affidavit and annexures were not filed in response to the substantive application, and held the review application merely recycled earlier responses and submissions.

p. 2
02

Whether the Ex-Parte Applicant was guilty of material non-disclosure

Holding

The claim of material non-disclosure had no foundation

Reasoning

The court compared the documents exhibited by Gitonga with those exhibited by the Ex-Parte Applicant and found they were basically the same documents, including orderly room proceedings, defaulter's sheet, termination of commanders' course, request to retire under the twenty-year rule, job offer, and an acquittal in a criminal case. Since the allegedly withheld material was already before the court, there was no non-disclosure.

p. 2
03

Whether the judgment impermissibly interfered with the 1st Respondent's constitutional mandate

Holding

The submission was rejected; the judgment merely requires the Respondents to honour their constitutional obligations

Reasoning

The court held that a judgment enforcing constitutional obligations against a public body does not improperly curtail its mandate. Any financial burden arising from compliance is a consequence of the Respondents' own constitutional delinquency and cannot be attributed to the Ex-Parte Applicant or the Court.

p. 2

Legal principles established

#
  • Documents in the custody of an employer are deemed accessible to it and cannot constitute fresh evidence for review merely because they were not placed before the court
  • A judgment requiring a public body to honour its constitutional obligations does not improperly interfere with its mandate, and any burden on public resources flows from the body's own constitutional delinquency

Court orders

#
  1. 1.The Application by the Respondents dated 27th October 2023 is declined
  2. 2.No order on the costs
Jurisdiction invoked
Not stated in the judgment; the matter arises from a judicial review application decided by the Court, and the present ruling determines a review application against that judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v National Police Service & another; Nyachiro (Exparte Applicant) (Judicial Review Application E066 of 2020) [2024] KEELRC 1519 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1519/eng@2024-06-14

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