[2016] KEELRC 208 (KLR)
The court found that the applicant was not denied natural justice, as the orderly room proceedings included the reading of the charge, calling and cross-examination of witnesses, and the applicant's own testimony. Furthermore, the applicant failed to exhaust the internal disciplinary appeal mechanisms provided under...
Source-derived case information.
- Citation
- [2016] KEELRC 208 (KLR)
- Parties
- Applicant: Charles Kahindi Mwango; Respondent: National Police Service Commission; Respondent: Peter Limo (Presiding Officer) Orderly Room Disciplinary Committee
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 5 of 2016
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Disciplinary Proceedings, Natural Justice, Exhaustion of Internal Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kahindi Mwango
Applicant
National Police Service Commission
Respondent
Peter Limo (Presiding Officer) Orderly Room Disciplinary Committee
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the applicant was denied natural justice during the orderly room disciplinary proceedings.
- 2 Whether the applicant was required to exhaust internal disciplinary appeal mechanisms before approaching the court.
Ratio Decidendi
The court found that the applicant was not denied natural justice, as the orderly room proceedings included the reading of the charge, calling and cross-examination of witnesses, and the applicant's own testimony. Furthermore, the applicant failed to exhaust the internal disciplinary appeal mechanisms provided under the National Police Service Commission (Discipline) Regulations, 2015. The court held that judicial review was premature and unmerited in the absence of exhaustion of these remedies, and therefore dismissed the application.
Court Disposition
application dismissed
Orders
- The judicial review application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
JUDICIAL REVIEW CAUSE NO. 5 OF 2016
IN THE MATTER OF AN APPLICATION FOR LEAVE TO COMMENCE JUDICIAL REVIEW FOR ORDERS OF CERTIORARI
AND
IN THE MATTER OF THE NATIONAL POLICE SERVICE COMMISSION ACT NO. 30 OF 2011
AND
IN THE MATTER OF THE NATIONAL POLICE SERVICE COMMISSION (PROMOTIONS) REGULATIONS, 2015
AND
IN THE MATTER OF ORDERLY ROOM DISCIPLINE OF CHARLES KAHINDI MWANGO (CPL) NO. 71450 P.C
AND
IN THE MATTER OF AN APPLICATION BY:-
CHARLES KAHINDI MWANGO CLAIMANT/APPLICANT
v
NATIONAL POLICE SERVICE COMMISSION 1ST RESPONDENT
PETER LIMO (PRESIDING OFFICER) ORDERLY
ROOM DISCIPLINARY COMMITTEE 2ND RESPONDENT
JUDGMENT
1. Corporal Charles Kahindi Mwango (applicant) was convicted after an orderly room proceeding for the offence of being negligent in the performance of his duty contrary to section 88(2) Eighth Schedule 1(t) of the National Police Service Act, 2011 and was fined Kshs 2,000/-.
2. Being aggrieved the applicant sought and got leave to commence judicial review proceedings on 22 March 2016.
3. The applicant filed a substantive motion on 30 March 2016 and when the motion came up for hearing on 5 May 2016, the Respondents sought for more time to file responses.
4. The Court granted the Respondents more time to respond to the motion and at the same time stayed the payment of the fine of Kshs 2,000/-.
5. The Respondents did not comply with the timelines for filing of responses and the Court extended the timelines severally (2nd Respondent did not file any response at all).
6. The applicant filed his submissions on 25 October 2016. Regrettably, the Respondents did not file submissions.
7. The Court has considered the material placed before it.
Natural justice
8. The applicant contends that the rules of natural justice were not observed by the Respondents during the orderly room proceedings in that there was no complainant, witness (ess) or judge during the proceedings. The authority of Kenya Revenue Authority v Menginya Salim Mungani, Civil Appeal No. 108 of 2009 was cited.
9. In the Court’s view that assertion is baseless as the copies of the orderly room proceedings filed by the applicant himself indicate that the charge was read to him, witnesses were called and were cross examined in detail by the applicant and that the applicant and his witness also testified.
Internal processes not exhausted
10. The Respondents on their part maintained that the applicant had not exhausted the statutory mechanisms for dealing with disciplinary cases and offences by police officers.
11. The National Police Service Commission (Discipline) Regulations, 2015 have set out elaborate provisions for hearing of disciplinary cases and avenues of appeal in instances where an officer is not satisfied.
12. The applicant did not prefer any appeal or seek a review in terms of the Regulations.
13. The Court will therefore agree with the 1st Respondent that the applicant ought to have exhausted the statutory mechanisms set out in the National Police Service Commission (Discipline) Regulations, 2015 before rushing to Court.
14. In effect the Court finds that the instant judicial review application was not only premature but also unmerited and it is dismissed.
15. No order as to costs.
Delivered, dated and signed in Nakuru on this 9th December 2016.
Radido Stephen
Judge
Appearances
For applicant Ms. Wachira instructed by Mongeri & Co. Advocates
For 1st Respondent Mr. Odunga, Legal Officer, National Police Service Commission
For 2nd Respondent Mr. Kirui, Litigation Counsel, Office of the Attorney General (no documents filed)
Court Assistant Nixon