Paskal Imbinda Omamo & Michael Kagoma Maina v Commission of Administrative Justice,Director of Public Prosecutions,Inspector General of Police,Indipendent Policing Oversight Authority & The Attorney General [2016] KEHC 1316 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

MISC APPLICATION NO. 235 OF 2014

PASKAL IMBINDA OMAMO .................................................... 1ST APPLICANT

MICHAEL KAGOMA MAINA ................................................... 2ND APPLICANT

VERSUS

COMMISSION OF ADMINISTRATIVE JUSTICE .............. 1ST RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS ...................... 2ND RESPONDENT

INSPECTOR GENERAL OF POLICE ................................ 3RD RESPONDENT

INDIPENDENT POLICING OVERSIGHT AUTHORITY .... 4TH RESPONDENT

HON. THE ATTORNEY GENERAL .................................... 5TH RESPONDENT

RULING

Before this court is the Chamber Summons dated 25/2/2015 in which the COMMISSION ON ADMINISTRATION OF JUSTICE (hereinafter referred to as the 1st Respondent) seeks the following orders:-

1. THAT this Honourable Court be pleased to strike out the name of the 1st Respondent namely Commission on Administrative (SIC) Justice from the proceedings

2. The costs of this application be borne by the 1st and 2nd Applicants”

The genesis of this matter is the application (Petition) filed in the High Court in Nakuru by MICHAEL KAGOMA MAINA (the 2nd Applicant) on behalf of PASCAL IMBINDA OMAMO (the 1st Applicant) alleging breaches of fundamental rights of the 2nd Respondent by the police. The Application named the Commission of Administrative Justice as the 1st Respondent.

The application was disposed of by way of written submissions. The 1st Respondent readily admits that the applicants came to their offices to make their complaints against the Kenya Police and the Office of the DPP in their handling of Nakuru CMCC No. 119 of 2013. There is evidence by way of annexed letters that the 1st Respondent did act and wrote to the office of DPP seeking a reaction to the allegations. The officer of the DPP failed to respond despite several reminders.

At all times the 1st Respondent kept the applicants informed of what efforts they were making to have the issue resolved. The 2nd Respondent in his submissions to court readily concedes that the 1st Respondent did write to him and kept him informed of the progress of their enquiries.

Failing to get any reply from the office of the DPP the applicants moved to court. By so doing they made it impossible for the 1st Respondent to continue to pursue the matter. Section 30(c) of the Commission of Administrative of Justice Act prohibits the 1st Respondent from investigating or pursuing matters which are already in court.

The Applicant who are lay persons appear to be labouring under the misapprehension that the 1st Respondent failed in their duty since the Office of DPP did not respond to persistent enquiries over the matter. In the contrary I find that the 1st Respondent did all that they were obliged to do under their mandate. They received the complaint from the applicant, wrote to the DPP (six letters in total) to make enquiries, sent several reminders and at all times kept the applicants updated on their actions. There is not much more the 1st Respondent could have or indeed was required to have done.

Understandably the applicants are disappointed that the enquires made by the 1st Respondent did not yield positive results but in no way can this be attributed to the 1st Respondent. As the matter is now before the court, I do agree that the 1st Respondent no longer has any legal mandate to continue enquiring into the matter. Their decision to hold the matter in abeyance awaiting the court’s decision is correct. As such it served no purpose to enjoin the 1st Respondent in this petition. Indeed the applicants seek no specific prayers (orders) as against the 1st Respondent. There is no reason to retain the 1st Respondent as parties in this application as there is no prayer seeking to have it directed to do or to desist from any act.

I therefore find the present application has merit. In order to enable the court determine the real issues in contention and in order to not to cloud the issues, the first Respondent ought to be removed from these proceedings. The 1st Respondent is an office mandated to handle complaints made by all citizens against public or state bodies. It carries out an essential and important mandate and undoubtedly had several complaints to deal with. It would be a waste of the commission’s time and resources to have it tried down in defending suits which ought not in the first place to have been filed against them. Therefore I do allow this application. The 1st Respondents name is hereby struck out from this application. The hearing to proceed as against the 2nd, 3rd, 4th, & 5th Respondent. No orders on costs.

Dated in Nakuru this 7th day of November, 2016.

Applicants in person

M. Odero

Judge

7/11/2016