Zelea Jakaa Akiru v County Commander Kenya Police – Mombasa, Regional Co-ordinator Kenya Police Service Coast, Inspector General of Kenya Police Service & Attorney General [2015] KEHC 3524 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CONSTITUTIONAL PETITION NO.32 OF 2015

ZELEA JAKAA AKIRU ….......................PETITIONER

VERSUS

THE COUNTY COMMANDER

KENYA POLICE – MOMBASA  ......  1ST RESPONDENT

REGIONAL CO-ORDINATOR

KENYA POLICE SERVICE

COAST …............................................ 2ND RESPONDENT

INSPECTOR GENERAL OF KENYA

POLICE SERVICE …................... 3RD RESPONDENT

THE HONOURABLE ATTORNEY

GENERAL   …................................. 4TH RESPONDENT

RULING

In my ruling dated 14th June, 22015 I did note that in his Judgment dated 20th January, 2015 Muriithi, Judge did state that the police have authority to commence disciplinary action under section 88 (4) of the National  Police Service Act notwithstanding Criminal Prosecution for the conduct which is against   the law and  also constitutes  an offence against discipline. He proceeded to discharge the interim orders restraining the conduct of orderly room proceedings against the ex parte applicant.

In the interpartes hearing I invited the parties to address me on the relevance of a decision made by Justice Byram Ongaya in Nyeri on 5th June, 2015 whereby he declared section 88 (4) of the National Police Service as un constitutional as it was inconsistent with article 50(2) of the Constitution. The Court was urged to find that even if the declaration by the Judge was proper it would not operate retrospectively.

Justice Muriithi  did determine the issue of orderly room proceedings. In this matter. It was open to the applicant  to have lodged an appeal against the decision  and orders that flowed from Justice Muriithi's ruling.

This is a Court with concurrent jurisdiction to that of Justice Muriithi. It cannot sit on appeal against  the decision of my brother Judge. Justice Byron Ongoya did declare  section 88 (4) of the National Police Service as un constitutional. That declaration cannot be held to  operate retrospectively.

Before me are two preliminary objections one dated 4th June, 2015 and another dated 3rd June, 2015.  I have anxiously gone through  them and I am satisfied that I lack jurisdiction to entertain and grant the orders sought in the application.  I uphold the preliminary objection.  No orders as to  costs.

Ruling delivered, dated and signed this 10th day of July, 2015.

….................

M.  MUYA

JUDGE

10TH JULY, 2015

In the presence of:-

Ananda holding brief Magolo

Mr. Ngare for Attorney General

Masila holding brief Wamotsa for Director of Public Prosecution

M. MUYA – JUDGE