Joel Lekuta v The National Police Service Commission [2016] KEHC 82 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  282 OF 2016

IN THE MATER OF AN APPLICATION OF JOE LEKUTA FOR LEAVE ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS TO REINSTATE THE APPLICANT TO THE SERVICE.

AND

IN THE MATTER OF CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF FAIR   ADMINISTRATIVE ACTION ACT, 2015

AND

IN THE MATTER OF THE NATIONAL POLICE SERVICE COMMISSION ACT, 2011

BETWEEN

JOEL LEKUTA ………………...…………………………....APPLICANT

VERSUS

THE NATIONAL POLICE SERVICE COMMISSION.…..RESPONDENT

JUDGMENT

1. On  26th June  2016 Honourable  Odunga J  granted the  exparte applicant herein Joel Lekuta leave to commence Judicial Review  proceedings  to challenge the decision of the National Police Service Commission  which vetted the applicant  herein out of the National Police Service on account of unsuitability and incompetence to continue serving.  The applicant was granted 14 days within which to file and serve the substantive motion.

2. The substantive motion was dutifully filed on 11th July 2016 within the said 14 days as per the leave   granted.  The motion is dated 5th July 2016. The exparte applicant seeks for the following prayers/orders.

1. That pending  the hearing and  determination of this application  inter partes and thereafter pending the hearing and  determination  of these proceedings, there be a stay of the decision   of the matter in as  far as  it relates to the respondent’s letter   dated   5th May  20216;

2. That pending the hearing and  determination of  this  application, interpartes and thereafter,  this Honourable  court be  pleased to grant   an order  of  prohibition    against the  respondent  from stopping  the salary  of the applicant   until this matter is fully  determined by this Honourable court;

3. That this Honourable court be pleased to grant  an order of certiorari to bring into  this court and to quash  the  decision of the respondent to remove  the applicant  from  The National Police Service   hereinafter  referred  to as  ‘the service’.

4. That this Honourable court be pleased  to grant  an order of  prohibition  against the respondent  from effecting  the  decision  made against   the  applicant  on  5th May 2016.

5. That this Honourable court be pleased to grant an order of mandamus to compel the respondent to reinstate the applicant to his duties as Superintendent of Police.

6. That cost of this application be borne by the respondent.

3. The notice  of motion is supported by 7 grounds  on the face  thereof; a statutory statement and a supporting  affidavit  sworn  by Joel Lekuta  the  exparte applicant herein.

4. The judicial  Review proceedings herein  challenge  the decision of the  National Police Service dated  5th May  2016 which  upheld  the earlier decision of the vetting  panel.  In other words, the exparte applicant applied for review of the decision to remove him from the service and it is the review decision that he is challenging vide these Judicial Review proceedings.

5. The exparte  applicant’s  case is  that on  31st  March  2016,  he  was   vetted by the respondent  pursuant   to Section  7(1) and  7(2)  of the  National  Police Service  Act, 2011, to assess his  suitability  and  competence  and to discontinue  the service of  any officer  who fails  the vetting thereto.

6. The exparte applicant further complains that he was only given two days to prepare a response to the allegations against him, which time frame was not adequate.

7. The exparte  applicant  further claims that during  the vetting  exercise, the applicant  was only interviewed  for  twenty (20) minutes  and the Board concluded   that the  applicant  failed the vetting.

8. Further, the applicant laments that he was not accorded a fair hearing as espoused in Article 50(1) of the Constitution of Kenya, 2010 as no complainant and or witnesses were called in for cross examination by the applicant.

9. That despite  challenging  the decision of the Vetting Board  dated  9th October  2015  and filing  the  application for review  and  after the review hearing on  5th February, 2016, the Review Board upheld the decision  to remove him  from the service.

10. The applicant laments  that the decision  to remove him from the  service  was   never communicated  to him  until  5th May 2016   three months  later vide  letter dated  5th May  2016  requiring him  to acknowledge  receipts of the  results   from the  vetting process. That when the applicant received the said letter and copy of the decision as annexed on 20th May 2016 he approached this court for redress.

11. The applicant avers that the respondent  disregarded the law and grossly  violated  the Rules  of natural justice  as the  applicant   was  not given   an opportunity   to examine  the  complainants   hence the  process  was prone to abuse and malice, ill will,  witch hunt, malafides, vengeance and  ridicule achieving  disastrous  results  to the applicant, his family and the public; and  that the ends of  justice demand  that the application  be allowed  ex  debito  justiciae.

12. The  supporting  affidavit  reiterates  the above  grounds  which form  the basis of the alleged  violations  by the respondent  as per his statutory statement and verifying affidavit  filed  together with the chamber  summons  for leave to  institute  these Judicial  Review  proceedings.  He also annexed the impugned   decisions and his application for review and proceedings of the vetting   process both at the initial stage and at the review level.

13. The respondent opposed the notice of motion and filed a relying affidavit sworn by Mr Johnston Kavulundi who is the Chairman of National Police Service Commission.  Most of the  depositions of the deponent  from paragraphs  3-11  of the affidavit  are depositions on points of law by reproducing statutory  provisions  of the  National  Police Service Act and  Regulations  which in essence  are not  depositions  of fact.  Affidavits are governed by the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya.  A deponent is expected to depose to  matters  of fact which  are either within his own knowledge  or on  information  which  he verily believe  to be true.

14. n the instant case, I find the depositions reproducing statutory provisions not being acceptable.

15. However, the facts  upon which  the opposition are premised  which can  be gathered  from the  verbose  affidavit  of  Mr Kavulundi are those  annexing  the proceedings  and decision  of the Vetting Board to the effect that the applicant was procedurally  removed  from  the police service after  the vetting   process  on 9th October 2015  on various   grounds  key among them being failure to supply the Commission with full and truthful  information contrary to Regulation 18 as  read with  Regulation 19 of the National Police Service(vetting)  Regulations 2013,  associating   with criminal groups, suspicious  deposits  which he could  not give  plausible  account  for and  being  rude, arrogant,  combative, hot tempered, impatient  and  argumentative.

16. According, to Mr Kavulundi, prior to the removal of the applicant from the police service, the applicant was accorded an absolutely fair and procedural hearing pursuant to the constitutional provisions and the National Police Service Commission Act and the Police Service (vetting) Regulations, 2013.

17. Further, that the applicant was timely and procedurally notified of the complaints summary  sheet dated  25th February  2015; of  which the  applicant  responded  on  5th March  2015  and that he never  raised  a complaint regarding  the  manner  and  nature of  the complaint  furnished  upon him.

18. That when the applicant  appeared to be vetted  on 31st  March  2015 he never  raised  any complaint as to the manner  and nature  of the  vetting  process, as shown by the hansard  records  which  show that  he was  accorded  ample  opportunity to address  all the complaints  leveled  against him.

19. That during  the review  application  hearing conducted  on 5th February  2016, the  applicant  did not   prove  any  error  on the face  of the records  or any  new facts  a per the requirements  of Regulation 33 of the Police Service (vetting) Regulations  which  guides  the process  but that  instead, the applicant  contradicted  himself while admitting  that he used to  receive  periodic  remittances  from junior  officers, a fact which he  had initially  denied  during  the initial vetting  process.  That the vetting  process  was smooth  save that  it  was  apparent  that the applicant   was a person  of  questionable  integrity.

20. That no  elements  of unfairness  and or  breaches of the law was  specifically cited  and  that after  analyzing  the documents provided by the applicant, the respondent found during the review application that the applicant had  failed  to accurately  explain the various sources  of income hence his financial  probity was wanting.  That  the hansard  report shows that the applicant   was given  sufficient  time during  the vetting; that he asked questions  and  hence the   decision to remove  him from the police service   was procedurally  done.  That therefore  this  application is  an abuse of the  court process  as it seeks  to prevent  the commission  from getting  rid of  officers of questionable  integrity, suitability and competence  from the service  in an effort  to bring  sanity  and restore public confidence in the police service.  The respondent therefore prayed that the Judicial Review   proceedings be dismissed with costs.

21. In the exparte applicant’s further affidavit  sworn on  19th September  2016  and  filed in court on  20th September  2016,  the exparte applicant  deposes  in  response to the replying  affidavit  sworn  by Mr Johnson Kavuludi  that  when he appeared before the vetting  panel, he was interviewed  for about  20  minutes touching  on allegations  in the summary  sheet  and that only  Mary Owour  interviewed  him hence there was no quorum to constitute  the vetting  panel  in its  composition, yet the decision  that  discontinued  him from the service  was signed  by several  other commissioners  who, infact, did not  attend  the vetting.

22. Further, that Mr Kavuludi himself was not present and therefore he only signed the results. He denied ever associating with  criminal gangs. He denied allegations that he solicited for money  from junior  and  that  neither  was he disrespectful  as he  was  an  officer of honour.  The applicant  maintained that prior to the  vetting,  he had  requested for  details  of the particulars  of the complaints leveled against  him but that he had been denied the same, which    was in breach  of  Articles  35, 47,50 and  249  of the Constitution  as well as  Regulation 18 of the National Police Service (vetting) Regulations, 2013.  The applicant maintained that his alleged accusers were not availed for cross examination. According to the applicant, the respondents had a predetermined mind to remove him from the service.

23. The applicant further claimed that even during  the review  application, he    was not accorded  ample time  to adequately  give his side  of the story contrary  to the rules of natural justice and that  the  review panel  instead  resorted  to intimidating  him, through  constant interruptions which infringed  on the  applicant’s  rights   to a fair hearing as they subjected him to questioning  on matters  that he could not adequately  respond  to since there were  fresh  allegations  at the review  hearing to the effect that he  solicited  monies  from James  Saguti, Daniel Munywaru and  Jared  Sia Naibei among others  hence there   was no justification  for discharging  the applicant  from the  service.

24. The applicant also deposed that section 7(2)of the National Police Service (vetting) Regulations 2015 limits  the respondents’  powers to determining  the suitability  and  competence   of the officers but that  instead, the respondents herein introduced extraneous  issues of  integrity  yet this  was not within  their mandate.

25. The applicant maintained that he was a trustworthy officer who had served diligently and that therefore the decision to remove him from the service was unconstitutional.

26. The parties’ advocates filed written submissions to canvass the application.  The exparte  applicant   filed  his   submissions  on 20th September  2016, together  with a list  of  authorities dated  19th September  2016.  The respondent on the other hand filed its written submissions dated 10th October 2016. The applicant’s submissions reiterated the grounds and depositions in his supporting   affidavit  and further  affidavit  filed on  20th September  2016, and  raised  two issues  for determination  namely;

1. Whether or not  the respondent conducted  the proceedings at the  vetting  on  31st  March 2015  and the review hearing  on 5th February  2016  in a fair  manner?

2. Whether the orders sought by the applicant ought to issue.

27. On whether  the vetting   and   review  process   were conducted  in a  fair  manner, Article 47 of the  Constitution  was cited   and  a submission made to the effect  that the vetting  and review  process  was not  fair because  the applicant  was never  given  adequate time to  respond to the allegations  leveled  against him; that no complainant testified for cross examination as requested by the applicant hence the findings of the Review Panel were unreasonable  and  amounted to unfair  administrative action; breach  of legitimate  expectation; and in total  violation of the applicant’s  rights to procedural fairness. Reliance was placed on Halsbury’s Laws of England 5th Edition 2010 VOL 61 paragraph 639 as cited in National Police Service Commission exparte Francis Omondi Okonya [2014] e KLR page 13.

28. It was further submitted on behalf of the exparte applicant that failure to call the complainants for cross examination to ascertain the truth in their allegations violated the applicant’s right to due process and natural justice.  That  insufficient  time  was accorded to him to comprehensively respond to the allegations and that fresh complaints during the review hearing  ought to have  been  brought  to his attention prior to the  hearing for there to be fairness  in the  as  espoused  in Article  50(1)  of the Constitution.

29. The applicant  also relied on  Judicial Service Commission  vs  Mbalu Mutava  & Another [2015] e KLRwherein Article  47(1)  of the Constitution  on fair administration  action  was   interpreted, with the applicant  submitting  that the respondent  must meet  the minimum  irreducible  elements  of fairness. The applicant prayed for the orders sought in the notice of motion.

30. In their  rejoinder  submissions  filed on  10th October  2016  the respondents submitted  framing  three issues  for determination  namely:

a. Whether the applicant’s right to fair administrative action and fair hearing were violated by the commission.

b. Whether  the vetting  panel  was lawfully constituted  and the decision  to remove  the applicant  lawfully  arrived at  and  signed.

c. Whether the applicant is entitled to the orders sought.

31. On whether  the applicant’s right  to fair  administrative action   and  fair hearing  was   violated by  the  National Police Service Commission, it   was  submitted by the respondent that by letter dated  9th October  2015   the applicant  was  informed   of the decision why the  review  application  was dismissed.

32. The respondent  maintained that  it accorded  the applicant  an opportunity to be heard  prior to his removal  after vetting  him procedurally, lawfully  and  fairly  and  in accordance  with the Constitution, the relevant law and regulations.  That the respondent removed the applicant after vetting him on his suitability and competence and in accordance with Regulation 12(2) (b) and (d) of the Police Service (Vetting) Regulations  which require  the Commission to look at the  past record    including the  conduct, discipline  and diligence   of the officer  and  also the  human  rights record of the officer.

33. Further, that the Hansard records demonstrate how fair the vetting process was in strict compliance with the rules of natural justice. That during the review hearing, the applicant  was given a fair hearing and fair administrative action as envisaged in Articles  50 and 47 of the Constitution  and that the applicant was accorded an opportunity to explain and clarify  on issues  he  was  found  wanting with regard  to his professionalism, diligence, and  suitability  to serve in the service.  That the review  application  was dismissed  because the applicant failed to exonerate himself from the allegations  that had  been leveled  against him  hence the  claim that  the rules of natural justice  were breached  was misleading   to the court  and an abuse of  the court  process. That the elements  of unfairness  and  breaches  of the law   were not specified by the applicant who merely quoted the constitutional provisions  and the statutory  law without  proof which  does not  suffice.

34. Reliance  was placed on Musili   Mwendwa  V Attorney General  & 3 Others  [2016] e KLRcitingAnarita Karimi  v Republic [1976-80] KLR  1272and as  reiterated  in Mumo Matemu  Vs Trusted  Society  of Human rights Alliance  & 5 Others [2013] e KLR  and Meme  vs Republic  [2004] e KLR  that the alleged  violations must be particularized in a reasonably  precise manner and that the specific provisions of the Constitution  which availed  the violated rights had to be  stated  as  was the Manner  of violation and extent  thereof.

35. On the second issue  of whether  the  decision to remove  the applicant   was lawfully arrived at  and signed, it  was  submitted  that the applicant’s contention  that the decision was not  arrived at  and signed  procedurally  are misleading  and  of no legal basis since Regulations 25(4) of the Police Service (vetting) Regulations 2013 provides  that the decision  shall be in  writing signed by all the commissioners  who decided  the matter and  sealed  with the common  seal of  the commission.  That the above provision does not restrict the decision making to the Commissioners who participated in the hearing since the proceedings are recorded in the Hansard verbatim which print outs are later used in determining whether an officer is suitable to continue serving or not.  Further, that few Commissioners   are incorporated in the various vetting panels whose other  members do not enjoy voting rights  when  it comes   to decision  making  which right  is a  preserve  of the respondent  through  the Commissioners thus the need for the adoption of the verbatim   Hansard record.

36. Further, it was submitted on behalf of the respondent Commission that  although the hearing  was not conducted  by all Commissioners who signed  the  decision, Regulation 10(1)  of the National Police Service (vetting)  Regulations  2013  mandates the Commission to constitute a number of  panels and comprising  such persons  as the  Commission shall determine  in order to ensure expeditious disposal of matters.  That Regulation 10(2) of the  Police Service (vetting) Regulations  2013  further provides that  the Commission may establish  panels  comprising   such co-opted  persons  as  it may deem  necessary  for purposes  of  determining   application for  review under Section  33  of the Act.  That the co-opted members are barred from participating in decision making which is in the exclusive   preserve of the Commissioners hence the adoption of the Hansard recording by Commissioners.

37. Reliance was placed on Immanuel Masinde Okutoyi & Others  V National Police Service  Commission  & Another  [2014] e KLR where Honourable Odunga J interpreted the above  provisions on the formation  and  composition of panels  and committees  for the better  carrying  out of  the Commission’s functions  and that in doing so it is  entitled  to  co-opt persons  whose knowledge  and skills are found necessary for the functions of the Commission and whereas  these persons may attend the meetings of the commission and  participate  in its  deliberations  they have  no power  to vote.  Accordingly, that the learned judge   found that there is inherently no wrong in the Commission setting up committees or even the so called panels as long as they comply with the law.

38. On the third issue of whether  the applicant   is entitled  to the orders  sought,  it  was submitted that the applicant  had failed to demonstrate  any act of procedural unfairness or illegality allegedly committed by the  respondent in the discharge of its statutory mandate  to vet  officers.  The  respondent urged the court to find that the  exercise of vetting   the applicant  was  fair and that it did not  infringe  on any fundamental  rights of the applicant  hence the orders sought  by the applicant are not   merited   and  therefore  the application  should be  dismissed  with costs  to the respondent.

39. The parties  advocates  had  initially  agreed to highlight  their respective submissions  but at the  oral hearing   on  17th October  2016  they agreed  to adopt  their written  submissions  as above  with Mr Ngira for the applicant submitting that due process  goes beyond issuing  notice to appear  and that  the complainants  had to be availed for  cross examination by the applicant   which  was  not the  case here.

Determination

40. This court has considered the applicant’s notice of motion seeking for Judicial Review orders of certiorari, mandamus,   and prohibition.  I have also considered the opposition thereto by the respondent and the submissions filed by the respective parties’ advocates and the authorities relied on.

41. The issue for determination is whether the applicant is entitled to the judicial review remedies sought.

42. The main  complaint  by the applicant  against the respondent  is that  the  respondent  did not  follow  due  process  as to avail the complainants for cross examination following allegations  against the applicant  and that  instead, the respondent  hurriedly  reached the conclusion  that the  applicant  had failed the vetting  without according  him a fair   hearing.

43. Procedural fairness is now not only a  common law  requirement  in decision making processes by quasi judicial or  administrative  entitles  but it  also a  constitutional  imperative  such that   even  where  a statute  or  internal  rules of an  entity  whether  public or  private do not  provide  for the right  to  head before  a tribunal  or  body or authority makes  a decision, the principle  of procedural fairness  is implied.

44. Judicial Review comes in handy to check on the excesses of a tribunal   or authority in decision making process.  It also  comes  in to check on  whether  there  was  procedural  fairness   in the decision  making process   by the inferior  body, or where  there  was illegality, or irrationality of the decision or decisions  making process.  Judicial Review looks at the procedure used in decision making and not the merits of the decision.  This court when exercising Judicial Review jurisdiction does not exercise civil or criminal jurisdiction therefore it is not permitted to act as an appellate court.

45. The entrenchment of the judicial review remedies as a constitutional principle naturally expands the scope of the judicial review remedies beyond the public private power dichotomy.  They apply  to all  persons  as  defined  under the Constitution ( Article  260)  and more  particularly, Article  20(1) under the  bill of rights  which  espouse that  “ The Bill of Rights applies to all law and  binds  all  stare organs  and all persons. Article  47  of the Constitution of Kenya stipulates  that:

1. “47(1) every person has the right to administrative action that is expedition, efficient, lawful, reasonable and procedurally fair.

2. If a  right  or fundamental  freedom of a  person has been  or is  likely to be  adversely  affected by  administrative  action, the person has the right to be given  written  reasons  for the  action.

3. Parliament shall enact legislation to  give effect  to the rights  in clause(1)  and that  legislation shall:-

a). Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

b). Promote efficient administration.

46. In W.R. Wade & CF Forsyth “Administrative Law 10th edition [2009] Oxford University Press page 433 it is stated:

“Where an oral hearing is given, it has been laid down that a tribunal must:

a. Consider  all relevant  evidence  which a party  wishes to  submit;

b. Inform  every party of all  the evidence  to be taken into account, whether derived from another party or  independently;

c. Allow  witnesses  to be  questioned;

d. Allow comment on the evidence and argument on the whole case.

And in exercising the power of dismissal, there exists a duty before exercising that power, to accord an officer an opportunity of knowing the charges and of the evidence in support  of them and  of producing  such  evidence  as he desired to produce  ( see Osgoode V Nelson [1872] LR 5 HL 636.

47. In Republic vs Deputy Industrial Injuries Commissioner Exparte P. Moore [1965] 1QB 456  at  490 the court stated that the  rules of natural justice  required the  Commissioner  to listen fairly  where a hearing  has been requested  or there is a hearing   whether  requested  or not, to the contentions  of all persons  who are  entitled to be represented  and the hearing, in particular  allowing both parties to comment on or contradict any  information  that he had obtained.

48. In adherence to Article 47(3)  of the Constitution, Parliament in 2015 enacted the Fair  administrative  Action Act No. 4 of  2015.  Section  4  of the said Act  reiterates  the constitutional entitlement  of every person  to administrative  action that is  expeditions, efficient, lawful, reasonable  and procedurally  fair  simultaneously; that every person has the right to be given written persons for any  administrative  action taken  against him;  In all  cases  where a  person’s  rights  or fundamental freedoms  is likely to be affected by an  administrative  decision, the administrator   must give  the person affected  by the decision-prior  and  adequate notice of  the nature  and  reasons  for the proposes  administrative  action, an opportunity to  be heard  and to make  representations; notice of  a right to  a review  or  internal  appeal against  the decision when  applicable; a statement  of reasons, notice of the right to legal  representations and the right to  cross examine; as well as  information, material  and evidence  to be relied upon in making  the decision  or taking  the  administrative  action.

49. It is worth noting that some of the elements in Section 4 above are mandatory whereas some are only required where applicable.  The Section goes on to provide in subsection 4, obliging the administrator to comply with the Act.

50. This  court  notes that  the  impugned  decisions of the Review   Panel of the Commission  was made  on  5th May  2016   after hearing of the  review process upholding  the decision  of the initial vetting process  that found the exparte  applicant  unsuitable  to continue  serving  as a police officer. However, the Fair Administrative Action Act, 2015 was enacted and Gazetted on 3rd June  2015.  It  was   assented  to by  the President  on  27th May  2015  and its date of  commencement  is 17th June  2015.  That being   the case, and  as statutes  do not  operate retrospectively, although the Act  implements  Article  47  of the constitution, it  would not be  appropriate  to  substantially  base the  vetting   process  of the applicant on the verbatim statutory provisions espoused in the Fair Administrative  Action Act, 2015.

51. I would, in the circumstances, focus on the substantive  constitutional provisions on fair, efficient, effective and  expeditious  administrative action  and as  interpreted  by courts in  various decisions  prior to 17th June  2015.

52. In this court’s view, failure to adhere to the provisions of Article 47 of the Constitution to administrative action is to violate the bill of rights and to limit the person’s rights under the Constitution.

53. The Constitution  obliges all persons to promote, protect  and  fulfill the rights  and  fundamental  freedoms   entrenched  in the bill of rights  Article 50(1)  of the Constitution  obliges that

“ Every person  has the  right to have  any dispute  that can be  resolved  by the application  of law decided  in a fair  and  public hearing before a court or, if appropriate, another  independent  and impartial  tribunal  or body.”

54. What the above provision espouses is the right to a fair hearing which is a cardinal principle of the rule of law. In Russel V Duke of Norfork [1949] 1 ALL ER 118 the court stated.

“There are in my view no words which are of unusual application to every kind of inquiry and every kind of domestic tribunal.  The requirement  of natural justice  must depend on circumstances  of the case, the nature  of the inquiry rules under  which the  tribunal is acting, the subject  matter is that being dealt  with  and  so forth.  Accordingly I do not much assistance  from the  definition of natural justice  which have  been from  time to time  being used, but whatever  standard is adopted  one essential  is that  the person  concerned would  have had  a  reasonable opportunity of  presenting   his case.”

55. In Halsbury’s Laws of England 5th Edition 2010 paragraph 639 the writers state that

“the rule  that no person is to be condemned  unless that  person has been given  prior notice  of allegations  against  him and  a fair  opportunity  to be heard  (the  audi alteram partem rule)  is a  fundamental  principle  of justice.  This rule  has been  refined  and  adapted  to govern  the  proceedings  of bodies  other than  judicial  tribunals; and  a  duty to act  in conformity  with the rule  has been imposed by  the common law on administrative bodies not required by statute or contract to conduct  themselves  in a manner  analogous  to court.”

56. Section 7(2) of the National Police Service Commission Act mandates the Commission to discontinue the service of any Police Officer who fails in the vetting referred to under the Subsection.  For the Commission to discontinue the services of the officer, however, it must be satisfied that the officer has failed the vetting.

57. However, as  was held  by Odunga J  in Immanuel  Masinde Okutoyo & Others vs The National Police Service  Commission Petition No. 6 of 2014 consolidated with Miscellaneous  Application Nos 11 and  12  of 2014, “ the mere fact  that there  are no complaints  lodged  against an officer  with the commission does not  necessarily mean  that the police officer  ought  to be  discontinued  from service, it is  imperative  that the allegations made against  a police officer  be availed to him or her in good time to enable him or her  adequately respond thereto. To confront an officer with allegations when their source cannot be vouch safed is in my view   unfair”.  As was held by Platt, JA in Onyango Oloo V Attorney General [1986-1989] EA 456.

“Courts are not to abdicate jurisdiction merely because the proceedings are of an administrative nature or of an internal disciplinary character.  It is a loan, which the courts of Kenya would do well to follow, in carrying out their tasks of balancing the interests of the executive and the citizen.  It is to everyone’s advantage if the executive exercises its discretion in a manner, which is fair to both sides, and is seen to be fair.”

58. In the instant  case, the exparte  applicant  complains  that he  was  served with  complaints  lodged  against  him vide letter dated 25th February 2015  Ref NPSC/1/3/9/VOL VII/(165) and asking  the applicant to send  a response by 6th March  2015, which was about 9 days.  That the complaint  summary  sheet  comprised  three allegations  by one  Daniel Otieno  Oponyo  over his  piece  of land;  soliciting  money   from  police  officers  and  smoking  in the office.  The applicant received the notice on 4th March 2015 and   prepared a response on 5th March 2015 to the respondent, a day before the last date for submitting the response.  The vetting took place on 31st March 2015 and a decision to remove him was communicated to him on 9th October 2015.

59. In his  response  letter  dated   5th March  2015  the applicant  in his last  paragraph  stated as follows:

“I have not been able to sufficiently respond to the summary of complaint for reason that the complaints have been generalized.  I would   have done  better if  proper particulars   were supplied  in good time  and  I am willing  to do so as  and  when called  upon and  I deny all allegations  raised in the complaint”

60. What the applicant  was saying in the above  letter is that  the summary of  complaint was generalized  and  that it lacked better or  proper  particulars  which, if supplied in good time, he  would have responded  thereto  sufficiently.

61. I have examined annexture JL2 a complaint summary sheet for the applicant.  The complaint states:

1. “It is alleged  that you  are intimidating and black mailing one  Daniel Otieno  Oponyo  over his  pieces  of land so that  he surrenders  the  said pieces  of land to  a  group of  Asians who were  duped  into purchasing  the said parcels  of lands by  well known  brokers.

2. Its further alleged  that  you abuse your power, are  corrupt, incompetent  and demand  money from officers  as follows: OCS  Kondele 5000 weekly, OCS Kisumu 3000 weekly, OC crime Kondele 3500, OC Kisumu 2000, D/OCS Kondele  2000 weekly, OC Perty Kisumu 1000, OC-Perty Kondele 2000 weekly, All in charge post/base,5000 weekly, Chania Group 3000 daily, America  Group, 4000 – totaling   to around   120,000 per month.

3. Its further  alleged that  you smoke in   the  office before  police and civilians , call  officers  using  bad  nicknames, seduce  and  kiss police officers, who are female”

62. According  to the  applicant, he  was  interrogated  by Commissioner Mary  Owuor only for  20 minutes  and that he  was  not given  an opportunity  to be heard.  Further, that although the decision was signed by 6 Commissioners, those Commissioners never vetted him hence the decision is a nullity.

63. On  whether  the applicant  was given  sufficient  time to  respond to  the allegations leveled  against him, this court   finds that  indeed the  letter  and summary sheet  of complaints   was send  to him on  4th March  2015  and he  was expected  to respond to those allegations  by 6th  March  2015.  The applicant met the deadline of 6th March 2015 by responding on 5th March 2015 but he  protested  that the time  allocated to him to respond  was  too short  and that the  complaints  were generalized and that they  did not  contain  better  particulars.

64. In my humble view, as the vetting process was a statutory  requirement, and  as the applicant   was to  be vetted  on  31st  March 2015, there was absolutely no reason why the  respondent  gave the applicant less  than 3 days  to respond to the allegations  against him.

65. I say  so because  having  written  the letter  on  25th  February,  there is  no  reason  why that   letter  was not  delivered to him by  a  runner  and instead  it  was delivered to the applicant  on 4th March  2015   yet the  deadline   was  6th March  2015.

66. Indeed, albeit the applicant  was  going to be  vetted  anyway, and it mattered  not that  there  was  any specific  complaint  against him.  I am in agreement with Hon. Odunga J in  Immanuel Masinde  Okutoyi (supra) case that it is  imperative  that the allegations  made against  a police officer  be availed  to him in good time  to enable  him or her adequately  respond thereto. The applicant in this case, was in my humble view not given adequate time to respond to the allegations against him.

67. I therefore  find that serving the applicant  with allegations   on  4th March  2015   and  expecting  him to respond  thereto  by  6th March  2015  which  was a day away was  unfair.

68. On the other  limb of  generalized  allegations  that had no  better  particulars, the court  notes that  other than  Mr  Daniel Otieno Oponyo  who  was  alleged  to have been blackmailed  by the applicant,  the other allegations  were truly  generalized.  And although the sources were said to be other officers holding junior positions to the applicant in the Kisumu area, their names    were never provided.  It  was  also  not indicated  as to what  specific  period/dates  the applicant is alleged  to have received  or demanded  monies  from his  juniors  and the criminal  gangs  namely the China Group and the America Group.  The complaints were too generalized yet at the vetting, the applicant was never given an opportunity to face or confront his accusers with questions to determine their credibility.  In my humble view, the applicant was confronted with allegations whose source could not be vouchsafed which is unfair.In this regard the writings  by W.R. Wade  & CF  Forsyth  in  Administrative  Law 10th Edition [2009] Oxford  University Press page 433 (supra)  are instructive  that:

“Where an oral hearing is given, it has been laid down that a tribunal must:

a. Consider  all relevant  evidence  which a party  wishes  to submit;

b. Inform  every party  of all  the evidence to  be taken into account, whether derived from another party or independently;

c. Allow witnesses to be  questioned;

d. Allow comment on the evidence and argument on the whole case.”

69. Albeit, in this case, the  Hansard  report shows that the applicant   was  vetted for  a considerably  long time  which cannot be  a 20 minute interview by Mrs Mary Owour as stated by the applicant, the court  notes  that the applicant’s  accusers were never availed for  the applicant  to question  them on the allegations against the applicant.

70. What I see from the Hansard report is that the panelists   became the investigators, accusers, the judges, and jury in their own cause. They did  most of the talking and talking without according the applicant sufficient opportunity to respond to the matters they raised.

71. A vetting process need not necessarily be characterized by any specific accusations since it is meant   to test the   competence   and or suitability of the police officer to continue serving. However, the moment  specific  accusations  are leveled  against  the officer, those specific  accusations  must be  served  upon  him in  good time  to enable   him  respond  thereto  and during  the vetting  process, the Commission is under  a  duty  to avail  the accusers   to be questioned by the applicant.  That  is the only  way that the  applicant  can be  said to have been  accorded  a fair opportunity  to be  fully  heard  on the accusations.  Failure to do so is a denial of the right to be heard fairly.

72. I am fortified by the decision in Gathaiga V Kenyatta University Nairobi HC Miscellaneous Application 1029 of 2007 [2008] KLR 587 where the court held:

“ I would at  this stage adopt  the observations  made in the  Hypolito  Cassani  De Souza  v Chairman  Members  of Tanga Town  Council [1961] EA  77 where the court  set down  the general  principles  which should  guide  statutory   domestic  or administrative  tribunals  sitting  in a quasi- judicial capacity.  Page 386 – the court said:

1. “If a statute prescribes, or statutory rules and regulations binding on the domestic tribunal prescribe, the procedure to be followed, that procedure must be observed;

2. If no procedure  is laid down, there may be  an obvious  implication that some form of  inquiry  must be  made such as will enable  the tribunal  fairly to determine  the question at  issue;

3. In such a case the tribunal, which should be properly constituted, must do its best to act justly and reach just ends by just means.  It must act in good faith and fairly listen to both sides.  It is not bound, however to treat the question as a trial.  It need not  examine  witnesses, and it  can obtain  information in any way  it thinks  best; the person accused  must know  the nature   of the accusation made;

4. A fair opportunity must be given to those who are parties to the controversy to correct or contradict any statement prejudicial to their view and to make any statement  they may  decide to bring forward;

5. The  tribunal should see  to it that   matter  which  has come into  existence  for the purpose  of the quasi- his is  made available  to both sides  and  once the  quasi-his  has started the  tribunal receives  a communication from one party or from  a third party, it should give the  other party  an opportunity  of commenting  on it.”

73. And in Halsbury’s Laws of England 4th Edition Reissue VOL 1(1) 178 it is stated

“Notification of the proceedings or the proposed decision must also be given early enough to afford the persons concerned a reasonable opportunity to prepare representations or put their own case.  Otherwise the only proper course would be to postpone or adjourn the matter.”

74. Vetting of a police  officer and which  may result  in his  or her removal from the service  is a serious  process  that would  affect  the career  and  livelihood of persons therefore it   was important  that in this case, the  respondent   provides  sufficient  particulars  of the allegations  leveled  against  the applicant including  names of his accusers  in sufficient  time to enable  the  applicant  respond to those  allegations  and or  question his  accusers.  That  did not  happen which in my view  was unfair, and not in accordance with  the principles  and  rules of  natural  justice.

75. In addition, during the plaintiff’s vetting which led to the decision to remove him from the service it  was  never  stated that  the Commission had established that the applicant would  visit  the bases weekly  to collect  the money  from  bases  and  subbases  and  or that  he associated  with  members of criminal  gangs  in Kisumu  known as China and  America. These allegations arose during the review hearing which was new evidence that was never given to the applicant to respond thereto prior to the review hearing.

76. Further, during  the review  application, the  Commission, from the Hansard  report  appears  to have been  revetting  him a fresh  as opposed to  listening  to the  officer’s  submissions  on why he was not  satisfied with the decision to remove  him from the  service.  Indeed, it is members of the review panel, and especially the chairman of National Police Service Commission Mr Johnston Kavuludi that did the questioning of the applicant throughout the process while introducing new matters and new evidence as if the applicant   was being vetted afresh.

77. In my humble view, a review application by the exparte applicant was never heard.  Instead, it  was  the Commission  questioning  the applicant  on new matters  which  were never part of the initial vetting  process.  That being the case, I find that the applicant   was denied a fair hearing.  Nonetheless, I do not  agree with  the  applicant that  there was no quorum  and or  that  the  panel  was wrongly  constituted, as  Regulation  10 permits the Commission to co-opt   other members to the vetting  panel who may not  have  a casting  vote, to assist the Commission  in its work  and hence, the other  members  who sat  with  Mrs Mary  Owour  during  the vetting  process  but who  could not  sign  the determination.  Accordingly, I find that challenge unmerited.

78. In the end, I find that the applicant’s prayer for certiorari is merited.  I grant  prayer  No. 2  of the notice  of motion, bringing  into this  court and quashing  the respondent’s  decision made on  5th May  2015  to remove  the applicant  from  the National Police Service;

79. Prayer No. 3 seeking for prohibition prohibiting the National Police  Service  from affecting  the decision  made on  5th May  2015 is however superfluous as the impugned decision has effectively been brought into this court and quashed;

80. I further grant prayer No. 4 compelling the respondent to reinstate the exparte applicant to his duties as superintendent of police;

81. I further grant prayer No. 5 prohibiting the respondent from stopping the salary of the applicant.

82. In addition, I order  that  as the  vetting process   is a statutory   requirement  for all  serving police officers,  the  respondent  shall carry  out their  statutory  mandate of  revetting  the  applicant herein Joel Lekuta, following the laid down  procedure  and constitutional and other statutory processes and   requirements  to the letter.

83. Each party shall bear their own costs of these Judicial Review proceedings.

Dated, signed, and delivered in open court at Nairobi this 13th day of December, 2016.

R. E. ABURILI

JUDGE.