Nkanda v National Police Service Commission & 2 others (Petition E001 of 2020) [2025] KEELRC 2383 (KLR)

2. c. That the deployment of the Applicant/Petitioner from Mai Mahiu Trafic Sub-Base, Naivasha Trafic Base, Nakuru County to Maganda Police station, Mombasa County be immediately suspended and or vacated and the claimant do continue with his duties at Mai Mahiu Trafic Sub-Base, Naivasha Trafic Base and the Respondents be prohibited from interfering in any way with the discharge of the petitioner’s duties at Mai Mahiu Trafic Sub-Base, Naivasha Trafic Base. d. That the third respondent, the Deputy Inspector General Kenya police service be committed to civil jail for a period not exceeding six (6) months or impose such other penalty as the Honourable court may deem fit for contempt of court for disobeying the decree of this Honourable Court dated 26th July 2021 by continuing to frequently and speedily deploying the Applicant/petitioner from one police station to another. e. That the costs of this application be provided for. The motion is supported by the petitioner’s Afidavit sworn on 18th December 2024 and it is opposed by the 1st respondent vide a Replying Afidavit sworn on 22nd January 2024(sic) by its Chief Legal Counsel /Director Appeals Policy and Legal Afiairs. The 2nd and 3rd Respondent did not file any response to the motion. On 15th January 2025, the counsel for the petitioner, 1st Respondent, and 2nd and 3rd respondents attended court and recorded consent to the efiect that the deployment of the petitioner from Mai Mahiu Trafic Sub-base, Naivasha would be suspended and the petitioner would continue with his duties at Mai Mahiu Trafic Sub-base, Naivasha Trafic Base, and the respondents would not interfere with his discharge of duties in the said Trafic Sub-Base pending hearing on 6th February 2025. Background 3. The petitioner sued the respondents seeking protection from frequent and speed deployment from one station to another and the transfer from his station then being Mugumu Trafic Sub-base, Nyandarua County to Kizingitini Police station in Lamu County. He contended that such frequent deployments and transfers amounted to breach of his rights under Article 27(1), (2) & (3), Article 41 and 47 of the Constitution and the National Police Service Commission (Transfer and Deployment) Regulations, 2015. Consequently, he prayed for the same to be quashed for being a nullity. He further prayed for an order directing the respondents not to interfere with his discharge of duties at Magumu Trafic SubBase, or charge him or discriminate him in any way. 4. The petition was opposed but in the end, judgment was entered in favour of the petitioner on 26th July 2021. In particular Marete J made the following orders in his Judgment: i. “A declaration be and is hereby issued that the acts of the Respondents in frequently and speedily deploying the petitioner from one station to another and currently transferring him from Magumu Trafic Sub-Base, Nyandarua County with a time frame of three weeks to Kizingitini station, Lamu County is in breach of the petitioner’s Constitutional rights under Articles 27 and 47 of the Constitution and the National Police service Commission (Transfer and Deployment) Regulation, 2015. ii. That this transfer is null and void for all interests and purposes and the same is quashed. iii. That the respondents be and are hereby prohibited from interfering in any way with the discharge of the petitioner’s duties at Magumu Trafic Sub-Base. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2383/eng@2025-08-13 2

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iv. That these orders of court are not an immunity to the petitioner to override the rules and regulations appurtenant to his employment obligations. v. That these orders are not in any way a limitation to the respondents in dealing and efiecting normal work relations on the petitioner. vi. That the costs of this petition shall be borne by the Respondents.” 5. A decree was extracted and issued by the Deputy Registrar of the Court on 6th August 2021. By separate letters dated 16th August 2021, the respondent through the OCS Nyeri and Attorney General sought copy of the judgment. On 18th August 2021, the Attorney General filed Notice of Appeal on behalf of the respondents challenging the said judgment and applied for certified typed proceedings. The typed proceedings were certified by the Deputy Registrar on 15th November 2021. A certificate of Delay of the proceedings was then issued by the Deputy Registrar on 20th January 2022. Nothing was mentioned about the intended appeal in the instant motion. 6. On 18th December 2023, the petitioner filed a Notice of motion dated 16th December 2023 which was identical to the one before the court now, seeking the following orders: a. That this application due to its urgency be certified urgent and be heard exparte in the first instance and exparte orders be issued. b. That pending hearing and determination of this application interpartes the deployment of the Applicant/Petitioner from Mai Mahiu Trafic Sub-Base, Naivasha Trafic Base, Nakuru County to Maganda police station, Mombasa County be immediately suspended and the Petitioner do continue with his duties at Mai Mahiu Trafic Sub-Base, Naivasha Trafic Base and the Respondents be prohibited from interfering in any way with the discharge of the petitioner’s duties at Naivasha Trafic Base. c. That the deployment of the Applicant/Petitioner from Mai Mahiu Trafic Sub-Base, Naivasha Trafic Base, Nakuru County to Maganda Police station, Mombasa County be immediately suspended and or vacated and the claimant do continue with his duties at Mai Mahiu Trafic Sub-Base, Naivasha Trafic Base and the Respondents be prohibited from interfering in any way with the discharge of the petitioner’s duties at Naivasha Trafic Base. d. That the third respondent, the Deputy Inspector General Kenya police service be committed to civil jail for a period not exceeding six (6) months or impose such other penalty as the Honourable court may deem fit for contempt of court for disobeying the decree of this Honourable Court dated 26th July 2021 by continuing to frequently and speedily deploying the Applicant/petitioner from one police station to another. e. That the costs of this application be provided for. 7. From the said motion, it was clear that after the said judgment, his transfer to Kizingitini Lamu was stopped and instead he was deployed (transferred) to Kamulu Nairobi on 29th May 2023, then on 15th August 2023 he was moved to Kacheliba police station West Pokot County, on 9th October 2023 he was moved to Naivasha police station, Nakuru County and on 30th December 2023 he was moved back to Kacheliba West Pokot County. He contended that the said frequent deployments/transfers amounted to contempt of the court decree passed on 26th July 2021. 8. In response to the motion dated 16th December 2023, 2nd and 3rd respondents contended that the Judgment and decree of passed herein did not bar them from transferring or deploying the petitioner https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2383/eng@2025-08-13 3

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in future. They maintained that the said decree did not give the petitioner’s immunity from future transfers and deployments to other stations. They further averred that the petitioner signed his appointment accepting to serve anywhere in the Country. Finally, they averred that the deployments/ transfers complained of constituted new cause of action and not contempt of court. 9. The parties requested the court to negotiate amicable settlement before determining the contempt motion dated 16th December 2023. On 2nd October 2024, Mr.Wahome Gikonyo, learned counsel for the petitioner appeared in court in the absence of the other parties and told the court that there was change of reigns in the National Police Service and that the matter had been fully settled. The terms of settlement were not disclosed and the court marked the case as fully settled as requested and closed the file. 10. Surprisingly, the petitioner came back to court with the current motion challenging another transfer from Mai Mahiu Trafic Sub-Base, Naivasha Trafic Base Nakuru County to Maganda Police station Mombasa County. He also prayed for the respondents to be punished for contempt of court for disobeying the decree dated 26th July 2021. 11. The 1st respondent denied involvement in the deployment of the petitioner and averred that such mandate vests with the Inspector General of Police by dint of section 10(1) (g) of the National Police Service Act and section 8 of the Transfer and Deployment Regulations, 2015. It further averred that, deployment is allowed under section 9 of the Regulations for 3 months, which may be extended. However, if the deployment exceeds a period of one year, the commission shall transfer the oficer. It clarified that its role in deployment is only limited to giving approval for further deployments under section 9(3) of the Regulations. 12. The motion was canvassed by written submissions. I have considered the motion dated 18th December 2024, the Afidavits and submissions filed. The only issues for determination is whether the application herein should be allowed as prayed. Analysis 13. There is no denial that the court rendered judgment on 26th July 2021 quashing the transfer of the petitioner from Magumu Trafic Sub-base, in Nyandarua County to Kizingitini police station, Lamu County. The court further declared the respondents’ act of frequent and speedily deploying of the petitioner from one station to another as a breach of his rights under Article 27 and 47 of the Constitution. However, the court clarified in the judgment that the petitioner was not granted immunity from rules and regulation of his employment and therefore the respondent had the liberty to deal with petitioner and efiect on him normal work relations. 14. My understanding of the said judgment is that the court quashed the impugned transfer from Magumu Trafic Sub-base in Nyandarua to Kizingitini police station Lamu County, and then declared deployments/transfers a violation of the petitioner’s right to fair administrative action and fundamental freedom from discrimination. I would say that the court was in efiect directing the respondents to act fairly when deploying/transferring the petitioner. I agree with the findings and the said judgment of my brother Judge. 15. However, regarding the instant motion, I am concerned with the petitioner’s selective enforcement of the judgment of 26th July 2021. I say so because after the judgment, he remained silent when he was deployed from Magumu Trafic Sub-base, Nyandarua to Kamulu police station in Nairobi County, Mai Mahiu in Nakuru County. He only protested when he was moved from Naivasha police station, Nakuru County to Kacheliba police station in West Pokot County and again from Naivasha to Maganda police station, Mombasa County. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2383/eng@2025-08-13 4

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16. Whereas I still hold the view that frequent movement of an oficer from one station is unfair labour practices, I must also state that the oficer should demonstrate willingness to serve in every corner of the Country. 17. At this point, I must also state that the petitioner’s case herein was heard and determined. Further that the petitioner’s counsel told the court that, on 2nd October 2024, that new sherifis had taken over the reigns in the National Police Service and resolved the petitioner’s matter. He also asked the court to mark the matter as resolved and the court did as requested. It follows that any new and ofiending deployments/transfers of the petitioner amounts to new cause of action which cannot be sneaked into this closed file as contempt proceedings. Litigation must have start and an end. They cannot be entertained externally through contempt applications instead of filing fresh suits to address new violations. 18. By now it must be clear that, the court is functus oficio in the petition herein since the petitioner accepted transfer to Kamulu and other stations and on 2nd October 2024 his counsel asked the court to mark the matter as settled. Consequently, I find no merits in the Notice of Motion dated 18th December 2024 and dismiss it with costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 13TH DAY OF AUGUST, 2025. ONESMUS N MAKAU JUDGE Order This judgment has been delivered to the parties via Teams video conferencing with their consent, having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. onesmus n makau judge https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2383/eng@2025-08-13 5

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