Republic v National Police Service & another; Nyachiro (Exparte Applicant) [2024] KEELRC 1519 (KLR)

Republic v National Police Service & another; Nyachiro (Exparte Applicant) (Judicial Review Application E066 of 2020) [2024] KEELRC 1519 (KLR) (14 June 2024) (Ruling)

Neutral citation: [2024] KEELRC 1519 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Judicial Review Application E066 of 2020

J Rika, J

June 14, 2024

Between

Republic

Applicant

and

National Police Service

1st Respondent

Attorney - General

2nd Respondent

and

Kennedy Mong'are Nyachiro

Exparte Applicant

Ruling

1. The Respondents have applied to the Court for review and setting aside orders, against the Judgment of the Court, granted in favour of the Ex-Parte Applicant, on 31st May 2023.

2. The Application is founded on the Affidavit of Assistant Superintendent of Police, Henry Gitonga, sworn on 27th October 2023.

3. Gitonga narrates that he was the Presiding Officer, in the disciplinary proceedings which culminated in dismissal of the Ex-parte Applicant.

4. The decision was quashed in the Judgment of the Court.

5. Review is sought on the ground that Judgment was given without the benefit of crucial evidence, which was not at the time of the hearing, available to the Respondents. It is stated that there was material non-disclosure by the Ex-Parte Applicant. It is further submitted that the 1st Respondent, stand the risk of being limited in discharge of its constitutional mandate, if the Judgment is upheld. Tax payers stand to lose, if the Judgment is executed.

6. The Ex-Parte Applicant relies on his Replying Affidavit, sworn on 20th November 2023. He states that there is no new evidence that would warrant the Court to interfere with its Judgment. The same evidence alleged to be new, was considered by the Court.

7. Parties agreed to have the Application considered and determined on the strength of their Affidavits and Submission on record. They confirmed filing and service of their Submissions on 8th February 2024.

The Court Finds: - 8. The Respondents relied on Grounds of Opposition and a Notice of Preliminary Objection, in their response to the Judicial Review Application, filed by the Ex –parte Applicant.

9. The Grounds and Notice of Preliminary Objection were both dealt with in the Judgment.

10. The Application for review, introduces the Affidavit of Henry Gitonga, who presided over the disciplinary proceedings, leading to the decision against the Ex-parte Applicant, subject of the quashing orders made by the Court in its Judgment.

11. There is no reason given by the Respondents, why Gitonga did not file his Replying Affidavit and the annexures in it, in response to the substantive Application. The Respondents opted to rely on bare Grounds of Opposition and Notice of Preliminary Objection.

12. The documents annexed to the Affidavit sworn by Gitonga, were always accessible to the Respondents. It cannot be accepted that the documents were not accessible or in the knowledge of the Respondents, at the time of the hearing. The 1st Respondent was the Ex-parte Applicant’s Employer, with the statutory duty of custody of personnel records. It had access to all the records from the inception of the proceedings.

13. The documents exhibited by Gitonga are not fresh evidence, that would affect the Judgment of the Court. The Ex-Parte Applicant exhibited in his Application, orderly room proceedings, defaulter’s sheet, termination of commanders’ course, his request to retire under twenty-year rule, his job offer by Seventh Day Adventist Church, and Judgment of the Court in C.M.C Criminal Case No.2956 of 2014 acquitting him.

14. The documents exhibited by Assistant Superintendent of Police Gitonga, are basically the same documents exhibited by the Ex-Parte Applicant, and the assertion by the Respondents, that the Ex-Parte Applicant is guilty of material non-disclosure, has no foundation. The Respondents’ Application for review, is no more than a rehash of their response to, and submissions on, the Application for Judicial Review. There is no newly unearthed smoking gun presented by the Respondents to the Court, to warrant review of Judgment.

15. There is no merit to the submission by the Respondents, about the Judgment interfering with the 1st Respondent’s constitutional mandate, and the execution of Judgment being burdensome to public resources. What the Judgment does is to require the Respondents to honour its constitutional obligations. Any burden imposed on public resources is a consequence of the Respondents’ constitutional delinquency. It cannot be blamed on the Ex-Parte Applicant or the Court.It is ordered: -a.The Application by the Respondents dated 27th October 2023 is declined.b.No order on the costs.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 14TH DAY OF JUNE 2024. JAMES RIKAJUDGE