Republic v Nyamira County Police Commander & 5 others

2. Upon consideration of the pleadings, the submissions, and the governing legal framework, the Court identifies the following issues for determination: whether the refusal or failure complained of constitutes administrative action within the meaning of Article 47 of the Constitution and the Fair Administrative Action Act; whether the Respondents’ refusal or inaction, as alleged, satisfies the legal threshold for judicial review intervention; and whether, in the circumstances presented, the order of mandamus is available and appropriate. 3. The ex-parte applicant initially sought leave under a Chamber Summons dated 1st July 2025, and leave was granted on 2nd July 2025. 4. In compliance with Order 53 Rule 3 of the Civil Procedure Rules, she thereafter filed the substantive Notice of Motion dated 22nd July 2025, seeking an order of mandamus directed at the OCS Matutu Police Station and the Traffic Base Commander, Matutu Police Station. The Motion seeks to compel the issuance of a police abstract relating to the accident and death of her late husband, Jared Mayaka Onchiri, which occurred on 3rd November 2024. It is supported by the statutory statement and verifying affidavit filed at the leave stage, together with annexed documents including the death certificate, the letters of administration ad litem issued on 28th April 2025, and extensive correspondence exchanged with police officers and relevant authorities. 5. The Respondents filed Grounds of Opposition dated 11th August 2025, objecting to the application but did not file any replying affidavit and therefore did not place before the Court any factual explanation for the refusal to issue the police abstract. The factual averments by the ex-parte applicant thus remain uncontroverted. 6. Judicial review jurisdiction is anchored in Articles 23 and 47 of the Constitution, Sections 8 and 9 of the Law Reform Act, Order 53 of the Civil Procedure Rules, and the Fair Administrative Action Act. The issuance of a police abstract is a statutory administrative function performed under the mandate of the National Police Service pursuant to the Police Act and the Traffic Act. It is therefore an administrative action governed by the constitutional and statutory standards of lawfulness, reasonableness and procedural fairness. 7. The Fair Administrative Actions Act relied on by the Applicant operationalized Art 47 of the Constitution. a. Section (7)(2) of Fair Administrative Actions Act (FAAA) outlines the circumstances under which a court or tribunal may review an administrative action or decision. The requirement of a “reasonable opportunity to state one’s case” is an apparent codification of the common law rule of natural justice and prohibits the condemnation of a person unheard. b. Section 7(2)(b)-(d) of FAAA states other instances to include situations of non-compliance with mandatory and material procedures and conditions precedent, procedural unfairness and errors of law c. Section 7(2)(e)-(h) of FAAA judicial review is available where an administrator acts on ulterior motives calculated to prejudice the rights of the applicant, fails to take all relevant considerations into account, acts on the basis of illegal delegation and also in bad faith. d. Section 7(2)(k) to (o) Administrative actions which are unreasonable, disproportional, in violation of legitimate expectation, unfair or which result from or in abuse of power are also liable to judicial review. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18467/eng@2025-11-27 2

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7. The evidence on record demonstrates that the Applicant made repeated requests for the abstract and wrote numerous letters seeking assistance, yet neither the OCS Matutu Police Station nor the Traffic Base Commander, Matutu Police Station, provided any explanation for the refusal or failure to act. No affidavit was filed to justify or contextualise the inaction. The refusal is therefore wholly unexplained. 8. The applicant relied on Republic v Inspector General of Police & Others ex parte Peter Mwanyivu Munyika & 10 Others (2021) KEHC 9186 (KLR), where the High Court held that police officers bear a statutory duty to issue police abstracts upon proper request, and that where they decline to act, they must furnish a lawful reason. Where no explanation is given, the refusal is unlawful and mandamus must issue. 9. The factual matrix of this case mirrors the reasoning in that decision. Neither the OCS Matutu Police Station nor the Traffic Base Commander has offered any lawful justification for failing to issue the police abstract. 10. Although the Respondents raised procedural objections, the question of jurisdiction remains primary. As affirmed in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, jurisdiction is everything and a court must down its tools the moment it finds it lacks it. The relief sought here is supervisory in character and concerns the performance of an administrative function by public officers. There is no statutory or constitutional impediment to the invocation of judicial review in these circumstances, and the Court is properly vested with the authority to determine the application. 11. Having considered the pleadings and material placed before the Court, I am satisfied that the Traffic Base Commander, Matutu Police Station, being the officer responsible for traffic matters and for the issuance of police abstracts arising from road traffic incidents, bears the statutory obligation to issue such an abstract upon a valid request. The Applicant who is duly authorised to act for the estate supplied all relevant information, and repeatedly sought compliance. The failure by the Traffic Base Commander to discharge this duty, without offering any explanation, is unlawful, unreasonable and procedurally unfair within the meaning of Article 47 of the Constitution and the Fair Administrative Action Act. Mandamus is therefore the appropriate remedy. 12. In the result, the application succeeds, and the Court issues the following orders: 1. An order of mandamus is hereby issued compelling the Traffic Base Commander, Matutu Police Station, being the officer responsible for traffic matters, to issue to the ex-parte applicant the police abstract relating to the accident and death of Jared Mayaka Onchiri. 2. The said police abstract shall be issued within seven (7) days of service of this order. 3. The Inspector General of Police, the Nyamira County Police Commander, and the Borabu Sub–County Police Commander shall, within their respective constitutional and statutory mandates of command and supervision of officers under the National Police Service, ensure compliance with this order and take all necessary steps to facilitate its execution. 4. Costs of the application shall follow the cause. DELIVERED AT NYAMIRA THIS 27TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE Appearances https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18467/eng@2025-11-27 3

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Court Assistant - Hilda For Appellant - Ms. Mr. Gichaba for Gichaba H.M & Co.Advocates For Respondents - Mr. Nderitu (PRC) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18467/eng@2025-11-27 4

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