[2024] KEELRC 13238 (KLR)

Chesebe v Attorney General & 3 others (Petition E087 of 2024) [2024] KEELRC 13238 (KLR) (27 November 2024) (Judgment)

Neutral citation: [2024] KEELRC 13238 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Petition E087 of 2024

B Ongaya, J

November 27, 2024

IN THE MATTER OF ARTICLES 2(1), 3, 10, 19, 20, 21(1), 22(1), 23(1), 24, 25, 26, 27, 28, 29, 40, 47, 48, 50, 165, 232(1), 238(2), 239, 241, 244 AND 246 OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF ALLEGED VIOLATION AND CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS GUARANTEED UNDER ARTICLES 10(1), 25, 26, 27, 28, 29,47, AND 48 OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF THE NATIONAL POLICE SERVICE COMMISSION ACT CAP 85 LAWS OF KENYA IN THE MATTER OF SECTION 89 OF THE NATIONAL POLICE SERVICE ACT CAP 84 OF THE LAWS OF KENYA IN THE MATTER OF CONTRAVENTION OF SECTION 4(1) AND (2) OF THE FAIR ADMINISTRATIVE ACTION ACT CAP 7L LAWS OF KENYA IN THE MATTER OF CONTRAVENTION OF SECTION 9(2)(D) OF THE PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT CAP 185A OF THE LAWS OF KENYA

Between

Lydia Chebasis Chesebe

Petitioner

and

The Attorney General

1st Respondent

National Police Service Commission

2nd Respondent

Inspector General of the National Police Service

3rd Respondent

Director of Criminal Investigations

4th Respondent

(Before Hon. Justice Byram Ongaya on Wednesday 27th November 2024)

Judgment

1. The petitioner filed the petition on 03. 06. 2024 through Nyongesa Nafula & Company Advocates. The petitioner prayed for reliefs as follows:a.A declaration be and is hereby given that the action of the 4th respondent, purporting to invite the respondent (read petitioner) to show cause why disciplinary action should not be taken against her, 3 years after she was interdicted is unconstitutional, in so far as it offends the Bill of Rights.b.An Order of Certiorari be and is hereby issued, bringing into this Honourable Court, the letter dated 23rdApril, 2024 by the 4th respondent to the petitioner, purporting to invite the petitioner to show cause why disciplinary action should not be taken against her, for purposes of quashing it.c.An order of prohibition be and is hereby issued, prohibiting the respondents, jointly and severally, either by themselves, their servants, agents or any one of them, from carrying out further disciplinary hearings, further interdicting, further instituting disciplinary hearings or termination proceedings against the petitioner.d.An Order of Mandamus, be and is hereby issued, directing the respondents, jointly and severally, either by themselves, their servants, agents or any one of them to lift the petitioner's interdiction and re-instate her to her position in accordance with the service standing orders.e.Any other orders that this Honourable Court may find appropriate.

2. The petition was based upon the following pleadings:a.The petitioner is a long serving police officer of the National Police Service, having been enlisted on 14. 08. 2008 and confirmed to the permanent and pensionable establishment.b.In the course of the petitioner's duties as a serving police constable, she was seconded to the International Police 's (Interpol) National Central Bureau where she spent 10 years before being seconded to the Kenya Revenue Authority in the Revenue Protection Services Division in 2019. c.In the course of her service, a taxpayer made a complaint against her and her colleagues to the effect that she had demanded for and collected a bribe of Kshs. 4,000,000. 00 from the taxpayer, purportedly to assist the taxpayer to clear some tax issues the taxpayer was facing.d.Pursuant to the complaint by the taxpayer, the petitioner was interdicted on 28. 01. 2021, to pave way for investigations into the matter. The petitioner would then proceed on compulsory leave, on half salary for over 3 years.e.Upon her interdiction, her terms of secondment with the Kenya Revenue Authority were terminated.f.Subsequently, her file was forwarded to the Director of Public Prosecutions for perusal and direction on the next steps to be taken.g.Vide a letter dated 06. 06. 2023, the Director of Public Prosecutions (DPP) wrote to the Inspector General of the National Police Service to the effect that 'the evidence on the file was insufficient to support any known charge in a court of law. Furthermore, because disciplinary proceedings against the petitioner had already been initiated and the tax issues with the taxpayer had been resolved, the DPP directed that the file be closed without further police action.'h.The petitioner further received a letter dated 06. 03. 2024 from the Directorate of Criminal Investigations stating that the inquiry had been completed and she had been found without fault, consequently, she was advised to write a letter to the Director of Criminal Investigations to lift her interdiction.i.Upon receiving the Director of Public Prosecution's letter on the status of her case, the petitioner wrote to the Director of Criminal Investigations on 12. 03. 2024, seeking that she be re-instated, noting that she had not been found culpable for any offence or misconduct known in law.j.In a surprising turn of events, on 23. 04. 2024, the petitioner received a letter from the Director of Criminal Investigations purportedly asking her to show cause why disciplinary action should not be taken against her for the events that had led to her interdiction early in 2021. k.The petitioner fears that the 4th respondent intends to maliciously terminate her employment as a police officer, in an extreme abuse of process.l.The 4th respondent, having cleared her of any wrongdoing, much less in writing, should not be allowed to circle back and claim to re-open the disciplinary process.m.The petitioner avers that since she has been on interdiction for 3 years, patiently waiting for the outcome of investigations, the re-opening of the disciplinary process again is not only oppressive, but also against the rules of natural justice.n.The petitioner beseeches the Honourable Court to grant the matter the earliest available date to forestall the impending injustice.o.The matter is not sub-judice or res-judicata.

3. The petitioner alleged constitutional violations as follows:a.Article l0 of the Constitution of Kenya, 2010 provides for the national values and principles of governance that bind all state organs, state officers, public officers and all persons whenever any of them applies or interprets the Constitution, applies or interprets the law, makes or interprets any policy decisions. The national values include human dignity, human rights, non-discrimination, good governance, transparency and accountability.The impending disciplinary proceedings, threatened against the petitioner by the 4th respondent flies in the face of the principles delineated above.b.Article 27 of the Constitution provides for the right to equal protection of the law and freedom from discrimination. The respondents, in this particular case of the petitioner, are attempting to re-write the law and the Service Standing Orders to the effect that for her particular case, she is to be subjected to a second disciplinary process after initially having been cleared of any misconduct.c.Article 28 of the Constitution of Kenya provides for the right to dignity for every person. The petitioner has been on interdiction for the past over 3 years. She has patiently waited as she is on interdiction for the results of her inquiry into her alleged misconduct. The 4th respondent now intends to un procedurally prolong that interdiction period, even though the results of the inquiry show that she was not blameworthy.d.Article 29 of the Constitution provides that every person has the right to freedom and security of the person, which includes the freedom not to be punished in a cruel, inhuman and degrading manner. The petitioner avers that firstly, being placed on interdiction for over 3 years. Second, upon being cleared of wrongdoing, re-initiating the disciplinary process again by issuing the petitioner with a Notice to Show Cause why her employment should not be terminated.e.Article 47 of the Constitution of Kenya provides that every person has the right to an administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The petitioner avers that the actions of the 4th respondent go against the tenets of Article 47 of the Constitution.f.Article 48 of the Constitution of Kenya, 2010 provides that the state is to ensure access to justice for all persons. In this case, the respondents are jointly and severally impeding the petitioner from accessing justice by prolonging her interdiction and refusing to lift her interdiction.

4. The 1st, 3rd and 4th respondents filed the replying affidavit of Muriuki Raaria, Superintendent of Police, also the Staffing officer Personnel II for the 4th respondent. The affidavit was filed through learned Chief State Counsel Oscar M. Eredi for the Honourable Attorney General. Subsequently, the learned Deputy Chief State Counsel Ms. Truphosa Achar also appeared in that behalf. It was stated and urged as follows:a.In 2019, while serving under secondment at the Kenya Revenue Authority (KRA) in the Revenue Protection Service division, one Mr. Daniel Odhiambo, a member of the public, lodged a complaint against the petitioner. Mr Odhiambo alleged that the Petitioner had demanded Ksh. 4,000,000 with menace, purportedly to assist in clearing some tax issues that the complainant had with the government.b.Preliminary investigations conducted by the petitioner's immediate supervisor at Kenya Revenue Authority (KRA) purportedly established that the petitioner's actions amounted to contravention of the law and gross misconduct. Specifically, it was alleged that she had investigated a tax evasion matter without being formally instructed or informing her immediate superior.c.On 28th January 2021, pursuant to the provisions of section 87(6)(a) of the National Police Service Act, 2011 the National Police Service Commission (Discipline) Regulations, 2015, and Paragraph 47 of Chapter 30 of the Service Standing Orders, the Petitioner was interdicted from duty to allow for investigations into the matter without interference. The interdiction letter is exhibited on the supporting affidavit and the replying affidavit for the 1st, 3rd and 4th respondents.d.Section 88A of the National Police Service Act, 2011 on interdiction states that when an officer is interdicted from duty in accordance with the Service Standing Orders or any other written law, the officer’s appointment shall not cease only because of such interdiction provided that the powers, privileges and benefits vested in him or her as a police officer shall during the interdiction, be in abeyance, but, the officer shall continue to be subjected to the same discipline and penalties and to the same authority as if he had not been interdicted.e.An Inquiry file No.1/2021 was instituted at the Directorate of Criminal Investigations at Buruburu Police Division, to investigate the allegations on the complaint lodged by Mr Daniel Odhiambo.f.Upon conclusion of the inquiry, the file was forwarded to the Office of the Director of Public Prosecutions (ODPP) for perusal, advice and directions, as some of the allegations by Mr Daniel Odhiambo were criminal in nature.g.On 6th June 2023 the ODPP by letter Ref: ODPP/HQ/CAM/2/947 directed that the file be closed with no further police action. The ODPP stated that the "evidence adduced by the investigations could not sustain a charge in a court of law" and erroneously indicated that the petitioner had already been dealt with through internal disciplinary proceedings.h.The 4th respondent sought clarification from the ODPP regarding the misconception about disciplinary proceedings having been conducted. (The letter is exhibit marked “MR-5” in the bundle of documents appended to 1st, 3rd and 4th respondents’ replying affidavit dated 19. 07. 2024).i.The ODPP, in its response dated 06. 09. 2023 reiterated its directive for closure of the inquiry file. (Exhibit marked as "MR-6" in the bundle of documents appended to 1st, 3rd and 4th respondents’ replying affidavit dated 19. 07. 2024).j.There were no disciplinary proceedings through the internal police dispute resolution mechanism or process that was initiated against the petitioner as the Director of Public Prosecution letter Ref: ODPP/HQ/CAM/2/947 dated 6th June, 2023 was referring to the outcome of the inquiry No.1/2021, which was not a disciplinary process, but simply a process to establish whether a criminal offence was committed and recommendation made thereto.k.On 23rd April , 2024 the petitioner was served with a show cause letter dated 23rd April 2024, asking why she should not be removed from the National Police Service under public interest and that of the service as per Para 52(e) Cap 30 of the Service Standing Orders (SSO) as read with Section 131(b) of the National Police Service Act 2011. (Show cause letter is marked as "MR-10" in the bundle of documents appended to the Replying Affidavit dated 19th July 2024).l.On 24th June 2024, the 2nd respondent (the National Police Service Commission) wrote to the 3rd respondent (Inspector General, National Police Service) instructing that the petitioner's interdiction be lifted and that she be charged in subordinate room proceedings. (This letter is marked as "MR-12" in the bundle of documents to the Replying Affidavit dated 19th July 2024. )m.On 18th July 2024, the 3rd respondent (Inspector General, National Police Service) lifted the petitioner's interdiction, as evidenced by the letter marked "MR-13" on the replying affidavit. The letter dated 18. 07. 2024 signed by Joyce Kanda, HSC for Inspector General, National Police Service was addressed to the Director of the 4th respondent. The letter of 18. 07. 2024 referred to the letter by the 4th respondent dated 16. 07. 2024 and then stated “The Ag. Inspector General, National Police Service has approved lifting of Interdiction in respect of the above-named officer with effect from 28th January 2021 being the date of interdiction. Kindly take necessary action.”

5. The 2nd respondent filed the replying affidavit of Peter Leley, the Commission’s Chief Executive Officer, sworn on 23. 07. 2024. The learned Litigation Counsel Ms. Chebet Koech appeared for the Commission. The replying affidavit for the Commission repeated the facts as set out and urged for the other respondents.

6. Final submissions were filed for the parties. The Court has considered all the material on record. The Court returns as follows.

7. To answer the 1st issue, the Court returns that the facts of the case appear not to be contested in any material respects. The petitioner is at all material times a police officer serving on secondment at the Kenya Revenue Authority. An allegation of bribery or corruptly soliciting for money was made against her. The Director of Public Prosecutions considered the investigation report and determined that no prosecution could be sustained against the petitioner. The petitioner was directed to write for lifting of the interdiction. She did by the letter dated 12. 03. 2024. On 23. 04. 2024, the show-cause letter issued against her with respect to matters the Director of Public Prosecutions had found no criminal proceedings could be sustained against her. In the letter of 24. 06. 2024, the National Police Service Commission wrote to the 4th respondent thus, “….The Inspector General’s letter indicates that closure of the file does not exonerate the officer from the blame. SSO Chapter 30(1) on discipline principle state that ‘All disciplinary proceedings under this part shall be in accordance with these Service Standing Orders, as approved by the Commission and which comply with Article 47 of the Constitution relating to fair administrative action.” The letter advised that the petitioner’s interdiction be lifted and the petitioner be taken through an orderly room proceeding and if found guilty as charged, to be sentenced accordingly. It is observed that the Commission’s advisory appears to come long after the letter to show-cause which had already issued on 23. 04. 2024. By the letter of 18. 07. 2024, the Inspector General of Police lifted the interdiction.

8. The 2nd issue for determination is whether the petitioner’s rights and fundamental freedoms have been violated or threatened with violation as pleaded. The Court returns as follows:a.There is no dispute that the Director of Public Prosecutions found that in view of the allegations made against the petitioner, no criminal prosecution could be sustainable. By that finding, the petitioner was thereby vindicated of the allegations. Thereafter, there is no justified reason shown why disciplinary proceedings could be continued or commenced because of the unsustainable allegations. Article 157 (11) of the Constitution states thus, “(11) In exercising the powers conferred by this Article, the Director of Public Prosecutions shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.” The Court considers that once the Director of Public Prosecutions found that the petitioner was not culpable, as the allegations could not sustain a prosecution, the petitioner was thereby vindicated and it amounted to abuse of due process for the respondents to seek to punish the petitioner upon allegations that had been found unsustainable. The respondents’ actions in that respect were unreasonable and contrary to Article 47 of the Constitution.b.Similarly, the respondents acted unreasonably when they appear to have disregarded the petitioner’s terms and conditions of secondment. The secondment letter dated 28. 02. 2019 on “Other Terms” stated “The appointment is subject to your strict observation of the Authority’s rules and regulations a copy of which will be made available to you.” The allegations leading to the interdiction accrued during the secondment period but the respondents appear to have disregarded the terms of the secondment on disciplinary control of the petitioner while she was on secondment. The respondents appear to have usurped the prerogative of the Kenya Revenue Authority to exercise disciplinary control over the petitioner as an officer who was serving on secondment and as per the Authority’s rules and regulations. The secondment letter states that the petitioner was serving the Authority as Officer (KRA3). It is not clear, and the respondents have not shown, how and under what contractual and statutory provisions they moved to terminate the secondment and then purported to initiate disciplinary proceedings against the petitioner with respect to alleged criminal misconduct related to the petitioner’s service with the Authority. It was once again unreasonable and in breach of Article 47 of the Constitution.c.The Court further considers that the lifting of the interdiction meant that there existed nothing adverse against the petitioner. The letter lifting the interdiction did so unconditionally. Section 88A of the National Police Service Act states “Where a police officer is interdicted from duty in accordance with Force Standing Orders or any other written law, the officer's appointment shall not cease only because of such interdiction. Provided that the powers, privileges and benefits vested in him as a police officer shall, during his interdiction, be in abeyance, but the officer shall continue to be subject to the same discipline and penalties, and to the same authority, as if he had not been interdicted.” While the Court has found that the respondents had no authority to interdict the petitioner while on the secondment service during which she was subject to the Authority’s Rules and Regulations and while no respondents’ authority to terminate the secondment has been established, the purported lifting of interdiction must be construed that in any event, there was nothing against the petitioner especially in view of the findings by the Director of Criminal Prosecutions.d.The Court considers that the petitioner has therefore established the violation of rights as was pleaded for her. The reliefs prayed for will issue save that the interdiction having been lifted after the petition was filed, mandamus will issue to the extent that she is reinstated or allowed to serve in the position or rank held. The petitioner has not prayed for costs and parties being in continuing employment relationship, there will be no order on costs of the petition.

9. In conclusion, judgment is hereby entered for the petitioner against the respondents for the following reliefs:a.The declaration be and is hereby given that the action of the 4th respondent, purporting to invite the respondent (read petitioner) to show cause why disciplinary action should not be taken against her, 3 years after she was interdicted is unconstitutional, in so far as it offends the Bill of Rights as found.b.The order of certiorari be and is hereby issued, bringing into the Honourable Court, the letter dated 23rd April, 2024 by the 4th respondent to the petitioner, purporting to invite the petitioner to show cause why disciplinary action should not be taken against her, for purposes of quashing it and is hereby quashed.c.The order of prohibition be and is hereby issued, prohibiting the respondents, jointly and severally, either by themselves, their servants, agents or any one of them, from carrying out further disciplinary hearings, further interdicting, further instituting disciplinary hearings or termination proceedings against the petitioner.d.The order of mandamus, be and is hereby issued, directing the respondents, jointly and severally, either by themselves, their servants, agents or any one of them having lifted the petitioner's interdiction, to re-instate or allow her to continue in the service in her prevailing rank in accordance with the Service Standing Orders.e.No orders on costs of the petition.

SIGNED, DATED AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS WEDNESDAY 27TH NOVEMBER 2024. BYRAM ONGAYAPRINCIPAL JUDGE