Nyabande v National Police Service Commission & 2 others

respondent to reinstate the applicant into the police service. The court also issued an order of mandamus directing the 1st respondent to pay the applicant half the salary due to him and withheld by the 2nd respondent from December 2016 to 25 June 2019. 3. In his Supporting Adavit, the applicant avers that the judgment was delivered in the presence of the parties. The respondent's advocate applied for a 30-day stay of execution, which was granted. Since there is no appeal, review or compliance with the court judgment and decree hereof. 4. On 26 March 2024, the applicant served the respondents with 30 days' notice to comply with the court decree and demanded compliance. There was no response. The notice was issued to the 1st respondent's oces. 5. On 6 May 2024, the applicant served the respondents with a 7-day notice to comply and settle the decree. On 26 August 2024, the respondents' advocate reached out to request a copy of the judgment that was served. 6. The applicant asserts that the respondents have refused to comply with and settle the decree by reinstating the applicant and paying half of the withheld salary, as directed by the court. The contempt, Peter Leley, is the Chief Executive Ocer (CEO) of the 1st respondent and hence the accounting ocer. There is knowledge of the judgment and decree herein, but there is willful neglect to comply. The respondents have not applied for review or lodged an appeal. The applicant remains locked out of employment by the respondent's willful disobedience of court orders herein. 7. The orders sought should issue with the summons of Peter Leley as the CEO and accounting ocer to attend court and show cause why he should not be committed for contempt of court and to be committed to civil jail for such disobedience of court. There has been no reply from the respondents. 8. The applicant submitted that since the judgment was delivered herein on 14 February 2024, the respondents have failed to comply. The applicant has not been reinstated or paid the salary arrears as directed by the court. Notice has been issued, the Decree has been served, and all eorts have been taken to ensure compliance without success. The willful disobedience of the court should be addressed with a summons to the accounting ocer, Peter Leley, to appear in court to explain why he should not be committed to jail. 9. The counsel for the 1st respondent submitted that the core function is human resource as assigned by law and does not extend to the functions undertaken by the Inspector General of Police. Under Article 225 of the Constitution, the 1st respondent’s mandate is to recruit police ocers. The role of assigning duties is upon the 2nd respondent. Under the command of the 2nd respondent, the applicant can be assigned duties. The 1st respondent has since written to the 2nd respondent, indicating that there is no appeal and that compliance with the court judgment and decree is required. Determination 10. The judgment herein delivered on 14 February 2024 is not contested. The application herein was led against the National Police Service Commission, and the accounting ocer is the CEO, Peter Leley. The application is also against the Inspector General of Police as the 2nd respondent. 11. In analysing the application, the court quashed the letter dated 25 June 2019 dismissing the applicant from oce, and the eect of the court's order was an order of mandamus directing his reinstatement https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2223/eng@2026-07-30 2

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into service. Additionally, for the period the applicant was on half salary, the balance was due; hence, an order of mandamus was issued directing the 1st respondent to pay the half salary withheld from December 2016 to 25 June 2019. 12. The orders of 14 February 2024 were specic and directed at the 1st respondent. Counsel for the 1st respondent has consistently attended but led no response. The fact of knowledge of the court orders and decree thereof is not challenged. 13. Under Article 246(3) of the Constitution, the 1st respondent has a mandate to recruit and appoint persons to hold or act in oces in the service, conrm appointments, and determine promotions and transfers within the National Police Service, as held in Attorney General & 2 others v Independent Policing Oversight Authority & another [2015] KECA 734 (KLR). 14. However, the assignment of duties to police ocers once recruited is vested in the 2nd respondent in terms of Article 245(4) (c) of the Constitution. 15. Hence, although the judgment herein delivered on 14 February 2024 was directed against the 1st respondent to enforce, the court appreciates the separation of constitutional roles in the recruitment and assignment of duties between the respondents. 16. To thus summon the accounting ocer for the 1st respondent and leave out the 2nd respondent’s accounting ocer will not achieve the intended purpose for these proceedings. 17. The judgment of 14 February 2024 was in two parts: Order 85 (vi) directed: vi. An order of Mandamus be and is hereby issued to the 1st Respondent to immediately reinstate the Exparte Applicant herein back into the police service. Order 85 (vii) directed: vii. An order of Mandamus do and is hereby issued directing the 1st Respondents to pay to the Exparte Applicant the salaries due to him being the Exparte Applicant’s half salary withheld by the 2nd Respondent from the month of December 2016 25th June, 2019. 18. The obligation to comply with the judgment herein delivered on 14 February 2024 remains lawful against the respondents. 19. The fact of the 1st respondent failing to le a replying adavit to the instant application notwithstanding, the court takes judicial notice of the applicable constitutional mandates between the respondents. Accordingly, orders sought in the application dated 29 May 2026 shall not issue as couched. No orders on costs. DELIVERED IN OPEN COURT THIS 30TH DAY OF JULY 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi ……………………………………………… and …………………………………..……… https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2223/eng@2026-07-30 3

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