[2021] KEELRC 298 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATION COURT

AT NAIROBI

PETITION NO. 70 OF 2021

(Formerly High Court Petition No. E334 of 2020)

Before Hon. Lady Justice Maureen Onyango

IN THE MATTER OF CHAPTER 4 OF THE BILL OF RIGHTS ARTICLES 19, 20, 21, 22), 23, 25, 47, 50(1) & (2)(a), 165(3)(a) & b) AND 246(1), (2), (3)(b) OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATER OF THE FAIR ADMINISTRATIVE ACT, 2015

AND

IN THE MATTER OF THE NATIONAL POLICE SERVICE COMMISSION ACT, 2011

BETWEEN

DONALD OJIJO OGETA PETITIONER

VERSUS

NATIONAL POLICE SERVICE COMMISSION RESPONDENT

JUDGMENT

Introduction

1. The Petitioner is a former police officer of the rank of a Police Constable who was stationed at Kisumu Central Police Station, Kisumu County at the time relevant to this suit.

2. The Respondent is a Commission established under Article 246 of the Constitution of Kenya, 2010 and is mandated to recruit, appoint, determine promotions, transfer, exercise disciplinary control, remove officers acting in offices within the National Police Service as well and perform other functions prescribed by the national legislation.

3. By his petition dated 8th October 2020, the Petitioner avers that on 16th June, 2016, in compliance with the provisions of the Constitution of Kenya, 2010 as read with the National Police Service Commission Act he was vetted by members of the National Police Service Commission.

4. He contends that during his vetting the members of the Commission mainly focused on his M-Pesa transactions and an existing facility advanced to him by the Kenya Police Sacco of Kshs.750,941/- in the year 2014.

5. He maintained that he responded satisfactorily to all the concerns raised by the Members of the Commission, among them M-Pesa transactions made by the Petitioner to fellow officers namely Madam Lily Terer, Police Constable Amos Ngunjiri and Corporal Evans Okuto.

6. The Petitioner avers that none of the officers mentioned were summoned by the Members of the Vetting Board to give their account despite the fact that his dismissal was purely on the basis of the said M-Pesa transactions.

7. He contends that the vetting exercise was unfair and that the Commission had a biased and predetermined conclusion to dismiss him from service contrary to the provisions of Article 47 as read with Article 50 of the Constitution of Kenya, 2010.

8. The Petitioner seeks the following reliefs:-

(i) A declaration that the Petitioner’s fundamental freedoms and rights under Chapter of the Constitution of Kenya, has been infringed and/or violated by the Respondent.

(ii) A declaration that the Respondent’s vetting and decision (arising thereof was in violation of the Petitioner’s fundamental rights under Articles 27, 47(1), 50(1), 246(3)(b) of the Constitution of Kenya, 2010.

(iii) An Order to quash the Respondent’s decisions of 6th December 2016 and 22nd August 2017.

(iv) An order of injunction further restraining the National Police Service from implementing the Respondent’s decision of 6th December, 2016 and 22nd August, 2017.

(v) Any other or further relief as the Court may deem just and expedient.

(vi) Cost of this Petition.

9. The Petition is supported by the Affidavit sworn by the Petitioner on 8th October, 2021.

Respondent’s Case

10. In response to the Petition the Respondent filed a Replying Affidavit sworn by Joseph Vincent Onyango its Chief Executive Officer on 14th January 2021 in which he contended that the National Police Service Commission in compliance with the provisions of Section 7 (2) of the National Police Service Act as read with Regulation 4 (a) of the National Police Service (Vetting) Regulations, 2013 carried out the vetting exercise of all officers who were in service in the Kenya Police Force and Administration Police Force prior to the promulgation of the New Constitution in 2010.

11. He further contended that Section 7(3) of the National Police Service Act as read together with Regulation 32 of the Vetting Regulations gives the Commission authority to discontinue from service any police officer who fails the vetting on the grounds of being unsuitable or incompetent.

12. The affiant maintained that in the removal of any officer the Commission is bound by the provisions of Regulation 3, 4 and 14 of the Vetting Regulations.

13. Mr. Onyango deposed that the Petitioner appeared before the Commission for vetting on 16th June, 2016 where he was queried on various issues among them his financial probity.

14. That the Commission noted that the Petitioner had a negative net worth of Kshs.376,498/-. Further while questioning the Petitioner’s Mpesa records the Commission also noted frequent and huge Mpesa transactions sent to his seniors.

15. That it was observed that the Petitioner could not convincingly explain the source of the Mpesa transactions, he stated that he had acquired a loan to the tune of Kshs.750,000/- for personal upkeep and used the same to purchase a car valued at Ksh.1. 1 million, with the intention of using it for business. However the car was stolen soon after. It was also observed that the Petitioner in an attempt to explain why he was sending money to his superiors told the Commission that he was engaged in the business of maize which information he wilfully failed to disclose to the Commission.

16. THAT from the vetting as captured in the Hansard record, it was apparent that the Petitioner was unable to plausibly explain the disparity between his sources of income and the transactions noted in his Mpesa. The Petitioner could not also explain the frequent money transfers from his Mpesa to his seniors.

17. THAT the Commission found the Petitioner explanations inconsistent and based on the evidence and on a balance of probabilities the Commission concluded that the Petitioner lacked financial probity and integrity and removed him from the service having failed the vetting.

18. The Affiant further observed that the Petitioner in complete disregard of the provisions of Regulation 18 and 19 of the Vetting Regulations failed to disclose earlier to the Commission that he was involved in maize business.

19. He further contended that the Commission did consider the Petitioner’s record, conduct and performance throughout his

service before reaching its decision.

20. The Affiant maintained that on 6th December, 2016 the Commission rendered its decision to remove the Petitioner from service on the ground that he lacked financial probity in accordance with the provision of Regulation 14 of the vetting regulations. He further maintained that the decision was properly communicated to the Petitioner using the correct channels of communication.

21. He further stated that the Petitioner did apply for a review of the decision pursuant to the provisions of Regulation 33 of the Vetting Regulations vide his Application dated 29th December, 2016 and the same was scheduled and proceeded for hearing on 12th July, 2017. That during the review, the Commission noted that the Petitioner explained that the disparity between his revenue and actual declared income was through corruption. That the Petitioner further admitted to receiving bribes from matatu operators.

22. It is the Respondent’s contention that the Petitioner’s Appeal was considered vis- a vis the Commission’s earlier decision of 6th December, 2016 and it was found to have fallen short of the requirements under Regulation 33 forcing the Commission to uphold its earlier decision to remove the Petitioner from Service. The Appeal decision was properly communicated to the Petitioner.

23. The Respondent holds that due process was followed and therefore any claims for bias and/or violation of the Petitioner’srights are denied in toto.

24. In conclusion the Respondent argues that the Petition is without merit and that this Court should accordingly dismiss it with costs to the Respondent.

25. The petition was disposed of by way of written submissions.

Petitioner’s Submissions

26. The Petitioner submitted that the Respondent failed in its constitutional and legal obligation to undertake the vetting process in a just and fair manner. To buttress this position the Petitioner cited and relied on the findings in the case of Republic v The Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004where the Court emphasised on the need for the observation of the rules of natural justice in all circumstances to ensure fairness.

27. He further submitted that the Respondent failed to provide any justification and/or rationale for its decision to terminate the Petitioner’s service in accordance with the provisions of Section 10(1)(i) of the National Police Service Commission Act.

28. The Petitioner argued that the vetting process conducted by the Respondent was unfair, un-procedural, biased and was aimed at discrediting him. He further argued that the Respondent failed to follow the rules of natural justice and thus its decision was unfair and unlawful a result of which his Constitutional rights as envisaged in the Bill of Rights were violated. For emphasis the Petitioner cited the cases of Immanuel Masinde Okutoyi & Others v The National Police Service Commission Petition No. 6 of 2014 consolidated with Misc. Application Nos. 11 andd 12 of 2014.

29. In light of the above the Petitioner argued that he was not afforded a fair hearing as explained by Michael Fordham in Judicial Review Handbook; 4th Edition. at Page 1007, W. R. Wade & C.F. Forsyth in their texts, ‘Administrative Law’ 10th edition (2009) Oxford University. The Petitioner further relied on the Court’s finding in the case of Kenya Revenue Authority v Menginya Salim Murgani Civil Appeal No. 108 of 2009.

30. The Petitioner maintained that his rights as protected under the Constitution of Kenya, 2010 as read with Section 4 and 12 of the Fair Administrative Actions Act were infringed and therefore urged this Court to come to a finding in his favour. For emphasis the Petitioner cited and relied on the case of Nancy Makokha Baraza v Judicial Service Commission (2012) eKLR.

31. In conclusion the Petitioner urged this Court to find merit in his Petition and allow it in terms of the reliefs sought therein.

Respondent’s Submissions

32. The Respondent on the other hand submitted that there was no bias or ill motive in the vetting exercise as contended by the Petitioner. It maintained that the exercise was guided by the provisions of Regulation 18 as read together with Regulation 19 of the Vetting Regulations.

33. It submitted that due process was followed and the Respondent lawfully and with valid reason terminated the Petitioner’s service. For emphasis the Respondent cited and relied on the Court findings in the case Republic v National Police Service Commission Ex Parte James Ngumi Mutungi Misc App No. 44 of 2016andGeorge Kingi Bamba v National Police Service (2017) eKLR where the Courts found the Respondent was justified in arriving at its finding on the basis of the record with respect to the cases.

34. It was the Respondent’s contention that the Commission was justified to terminate the Petitioner’s Service on account of financial probity. That it was further justified to uphold the decision on appeal.

35. The Respondent further maintained that none of the Petitioner’s rights were violated as contended by the Petitioner. It argued that the Petitioner has failed to demonstrate clear instances where his rights were allegedly violated by the Respondent. To buttress this argument the Respondent cited and relied on the Court findings in the cases of Anarita Karimi Njeru v The Republic (1976 – 1980) KLR 1272andMeme v Republic & Another (2004) eKLR.

36. In conclusion the Respondent urged this Court to find that it conducted the vetting exercise fairly hence the Petition be dismissed with costs to the Respondent.

Analysis and Determination

37. Having considered the Petition, Affidavits, evidence adduced by the parties hereto, submissions and authorities cited by both the Petitioner and the Respondent respectively I am of the view that the following are the issues for determination:

(i) Whether the Petitioner’s right to fair administrative action and fair hearing was violated during the vetting exercise;

(ii) Whether the decision to remove the Petitioner from service was valid and justified;

(iii) Whether the Petitioner is entitled to the reliefs sought.

Whether the Petitioner’s right to fair administrative action and hearing was violated during the vetting exercise

38. Article 47 of the Constitution provides for fair administrative action while Article 50 provides for fair hearing. A perusal of the Hansard reveals that the petition was accorded a fair hearing both at the vetting hearing and on appeal. In both processes the Petitioner was questioned on documents which he had himself submitted to the Vetting Committee. The Petitioner was even granted his request to be heard in Kiswahili.

39. Although the Petitioner cited several provisions of Constitution in both the petition and the submissions which he alleged to have been violated, he did not set out with clarity how any of those rights and fundamental freedoms were violated.

40. The Hansard does not disclose any bias as alleged by the Petitioner. The averment that Commissioner, Mary Owuor categorically asked the Petitioner how he would reply his loan despite the fact that he would lose his job does not show that the Commissioner was biased. The Petitioner quoted the Commissioner out of context as the remark was made after the Petitioner failed to explain what he did with the loan he took from the co-operative alleged to invest but did not.

41. It was also obvious at the time that the Petitioner had been found to have a negative net worth of Kshs.376,000/- which in itself was a ground for his removal on account of indentical probity.

42. I find no proof of violation of the Petitioner’s right to fair administrative action during the vetting process.

Whether the decision to remove the Petitioner from service was valid and justified

43. After the Petitioner’s vetting, the Respondent rendered its decision dated 6th December, 2016 in which the vetting Commission recommended the removal of the Petitioner from service due to lack of financial probity by dint of the provisions of Regulation 14 of the Vetting Regulations.

44. The Petitioner in his defence maintained that he had furnished the Respondent plausible explanation in relation to all the financial queries raised by the Respondent during the vetting.

45. He further maintained that the Respondent failed to call any of the officers mentioned to have received M-Pesa from him to give their own account to the Commission prior to it making its final determination on the issue.

46. The Petitioner accused the Respondent of conducting the vetting in a biased matter given that it decided to terminate his services despite the fact that he give a logical explanation to the huge M-pesa transactions that formed the basis for his termination.

47. The Petitioner further argued that it was not proper for the Commission to discontinue his service despite the fact that he had been in service for 15 years without any complaint and that he was an honest, passionate public servant who was still willing to serve his country passionately and with professionalism.

48. This Court has considered the findings of the Vetting Committeeas indicated in Paragraph 9 to 12 of the Vetting decision which state as follows:

“FINDINGS

The Commission examined the officer’s wealth declaration forms, and all financial records submitted and gave due regard to all the documentations and responses provided by the officer during his vetting interview.

The Commission noted that the officer had a negative net worth. The Commission further established that the officer was unable to give a plausible explanation to the huge questionable M-Pesa transactions yet he had not declared any source of income.

The Commission finds the officer is in contravention with regulation 18 of the National Police Service Vetting Regulations, 2013 which requires officers to fully and truthfully supply all information required.

In view of the foregoing, the Commission finds the officer lacking in financial probity and unsuitable to continue serving.

DECISION

Taking all these factors into account, the Commission finds that officer DONALD OGETA OJIJO, has failed the vetting and is hereby in accordance with the law removed from the service.

The Officer’s attention is drawn to the provisions of Regulation 33 that provide the grounds for review.”

49. In the review decision, the Respondent found as follows –

“FINDINGS

The officer, Donald Ogeta Ojijo, initially appeared for vetting on Thursday, 16th June 2016, The officer failed the vetting exercise after the Commission found the officer’s financial probity wanting due to a negative net worth. The officer had also failed to fully disclose all information required by the Commission contrary to Regulation 18 of the NPS Vetting Regulations.

The officer applied for a review of the decision by the Commission, and his application was admitted for hearing to allow the officer to give further information on the issue.

He appeared for the vetting. review hearing on Wednesday, 12th July 2017 where he was interviewed by the members of the panel.

During the review hearing, the Officer admitted that he had received bribes from amateur operators, and asked that he be forgiven.

During the review hearing, the officer admitted that he had received bribes from matatu operators, and asked that he be forgiven.

The officer was however not able to explain the numerous transactions noted, and whether he had any additional sources of income, and shifted his original explanation, including what he had proposed in his vetting review application.

The Commission finds that this casts doubt into the integrity

of the officer and reveals a lack of conformity with his known earnings and lends veracity to possible involvement in corruption activities.

DECISION

Taking all these factors into account, the Commission finds’ that the officer DONALD OGETA OJIJO has failed the vetting, and therefore upholds the decision to remove the officer from Service.”

50. As a Public Servant, the Petitioner is bound by the provisions of the Public Officer Ethics Act. Section 10 of the Act provides as follows:

Private interests

An officer—

(a) shall ensure that he does not subordinate his official duties to his private interests or put himself in a position where there is conflict between his official duties and his private interests;

(b) shall not associate outside his official duties with any financial or other activities in circumstances where there could be suspicion that his official position or official information available to him was being turned to his private gain or that of his associates;

(c) shall not engage in any occupation or businesswhich might prejudice his status as an officer or university education into dispute; and

(d) shall not in any way trade with his employer or allow his spouse or relatives to do so, or trade with any other institution where he is likely to have an advantage by virtue of his office.

[Emphasis added]

51. From the foregoing, I find that the Respondent had valid reason to find that the Petitioner had failed the Vetting and should be removed from service.

52. I therefore find that the Respondent indeed had a valid and justifiable reason for the Petitioner’s removal from service.

53. For the foregoing reasons I find no merit in the petition and the same is accordingly dismissed.

54. Each party to bear its costs.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 12TH DAY OF NOVEMBER 2021

MAUREEN ONYANGO

JUDGE

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.

MAUREEN ONYANGO

JUDGE