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

6. The Ex-Parte Applicant relies on his Replying Afidavit, sworn on 20th November 2023. He states that there is no new evidence that would warrant the Court to interfere with its Judgment. The same evidence alleged to be new, was considered by the Court. 7. Parties agreed to have the Application considered and determined on the strength of their Afidavits and Submission on record. They confirmed filing and service of their Submissions on 8th February 2024. The Court Finds: 8. The Respondents relied on Grounds of Opposition and a Notice of Preliminary Objection, in their response to the Judicial Review Application, filed by the Ex –parte Applicant. 9. The Grounds and Notice of Preliminary Objection were both dealt with in the Judgment. 10. The Application for review, introduces the Afidavit of Henry Gitonga, who presided over the disciplinary proceedings, leading to the decision against the Ex-parte Applicant, subject of the quashing orders made by the Court in its Judgment. 11. There is no reason given by the Respondents, why Gitonga did not file his Replying Afidavit and the annexures in it, in response to the substantive Application. The Respondents opted to rely on bare Grounds of Opposition and Notice of Preliminary Objection. 12. The documents annexed to the Afidavit sworn by Gitonga, were always accessible to the Respondents. It cannot be accepted that the documents were not accessible or in the knowledge of the Respondents, at the time of the hearing. The 1st Respondent was the Ex-parte Applicant’s Employer, with the statutory duty of custody of personnel records. It had access to all the records from the inception of the proceedings. 13. The documents exhibited by Gitonga are not fresh evidence, that would afiect the Judgment of the Court. The Ex-Parte Applicant exhibited in his Application, orderly room proceedings, defaulter’s sheet, termination of commanders’ course, his request to retire under twenty-year rule, his job ofier by Seventh Day Adventist Church, and Judgment of the Court in C.M.C Criminal Case No.2956 of 2014 acquitting him. 14. The documents exhibited by Assistant Superintendent of Police Gitonga, are basically the same documents exhibited by the Ex-Parte Applicant, and the assertion by the Respondents, that the ExParte Applicant is guilty of material non-disclosure, has no foundation. The Respondents’ Application for review, is no more than a rehash of their response to, and submissions on, the Application for Judicial Review. There is no newly unearthed smoking gun presented by the Respondents to the Court, to warrant review of Judgment. 15. There is no merit to the submission by the Respondents, about the Judgment interfering with the 1st Respondent’s constitutional mandate, and the execution of Judgment being burdensome to public resources. What the Judgment does is to require the Respondents to honour its constitutional obligations. Any burden imposed on public resources is a consequence of the Respondents’ constitutional delinquency. It cannot be blamed on the Ex-Parte Applicant or the Court. It is ordered: a. The Application by the Respondents dated 27th October 2023 is declined. b. No order on the costs. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1519/eng@2024-06-14 2

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DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 14TH DAY OF JUNE 2024. JAMES RIKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1519/eng@2024-06-14 3

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