[2023] KEELRC 2678 (KLR)

Hassan v National Police Service Commission & 3 others; National Council for Persons with Disabilities (NCPWD) (Interested Party) (Environment and Land Case Civil Suit E032 of 2022) [2023] KEELRC 2678 (KLR) (30 October 2023) (Ruling)

Neutral citation: [2023] KEELRC 2678 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Environment and Land Case Civil Suit E032 of 2022

M Mbarũ, J

October 30, 2023

Between

Idle Alas Sheikh Hassan

Petitioner

and

National Police Service Commission

1st Respondent

Inspector General National Police Service

2nd Respondent

The Kenya Revenue Authority

3rd Respondent

Hon Attorney General

4th Respondent

and

National Council for Persons With Disabilities (Ncpwd)

Interested Party

Ruling

1. Application dated 15th July, 2022 seeking a review of the judgement herein has not been addressed due to intervening applications by the petitioner. One such application is the one dated 21st March 2023 which followed the Deputy Registrar’s letter dated 27th March 2023 recalling the file and that the petitioner was seeking to withdraw the petition.

2. On 19 April, 2023 the respondents attended court seeking to have a ruling with regard to the application dated 15th July, 2022.

3. On 18th September 2023, parties attended and the petitioner withdrew application dated 21st March 2023. Parties reverted back to the pending ruling on application dated 15th July 2022.

4. The petitioner filed application dated 15th July, 2022 under the provisions of Section 80 of the Civil Procedure Act and Order 45 rule 1, 2, and 3(2) of the Civil Procedure Rules seeking for stay of the judgment delivered on 30th June, 2022 and that the petitioner be allowed in the service of the 1st respondent and that the court be pleased to review the judgment.

5. The application is supported by the Affidavit of the petitioner and on the grounds that the petition was filed on the basis that as a person with disability, employment retirement age was extended from 60 years to 65 years which the petitioner had not attained by the time the 1st respondent issued the notice to retirement and hence denied the petitioner a fair chance to serve and remain in service as a person living with disability. The court made an error of fact and finding that disability arose in the year 1985 whereas the petitioner was assessed and registered as a person with disability on 4th May, 2020 and upon which he was issued with the necessary certification by the interested party and a Certificate of Tax Exemption by KRA which is evidence that indeed he is a person with disability and should be considered under the Persons with Disability Act for retirement at 65 years. The court in replying on the PSC Regulations failed to take into account the fact of registration and hence arrived at an error of fact which justify a review of the judgment.

6. The claimant also avers in his affidavit that he should be allowed to have his employment extended until he attains 65 years.

7. On 3rd August, 2022 the court issued interim orders staying its judgment to allow the petitioner to serve the respondents and to attend hearing. The respondents failed to abide the orders of the court and as a result, the petitioner filed application dated 14th October, 2022 citing the respondents for contempt.

8. Parties attended court on 19th September, 2022 and were directed to attend hearing for both application on 27th October, 2022 for hearing.

9. On the scheduled hearing date, the petitioner was absent and the application dated 14th October, 2022 was dismissed for want of attendance. The application related to contempt proceedings against the respondents.

10. The petitioner then filed application dated 27th October, 2022 seeking reinstatement of the dismissed application.

11. On 18th January, 2023 the petitioner filed application citing the 2nd respondent for contempt.

12. The 1st respondent filed the Replying Affidavit of Silas Oloo Mc’Opiyo the acting Chief Executive Officer on the grounds that the petitioner was seeking for the extension of his retirement age from 60 to 65 years and relied on the Public Service Commission Regulations, 2020. The judgment delivered on 30 June 2022 dismissed the petition on the grounds that the petitioner sat on his rights and the same cannot be cured through his petition. The matter having been addressed on the merits, the petitioner has not raised any issue that justify a review of the judgment as required under the provision Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. There is no discovery of new matter or any good cause demonstrate to justify an application for review.

13. The 2nd and 4th respondents filed Grounds of Opposition.

14. The parties attended court on 20th February, 2023 and made oral submissions. The petitioner had filed the following applications;1. Application dated 15th July, 2022 seeking review of the judgment;2. Application dated 14th October, 2022 which was dismissed for want of attendance;3. Application dated 27th October, 2022 seeking reinstatement; and4. Application dated 18th January, 2023 seeking to cite the 2nd respondent for contempt.

15. The petitioner thus submitted that the judgment herein should be reviewed for error on the face of the record where the court made an error in finding that disability occurred in the year 1989 whereas this occurred when the petitioner was assessed and issued with certificate of registration on 4th May, 2020 and to make a different finding is a mistake and error which can be rectified with a review of the judgment.

16. The petitioner also submitted that he submitted his request for extension of retirement age two years before his retirement which is within the PSC regulation 70 which must be read with a view to accommodate persons with disability such as the petitioner. The removal from service has been prejudicial and will remain in violation of the rights of the petitioner hence the judgment should be stayed to allow the 1st respondent retain the petitioner in the service. upon the orders of court on 3rd August, 2022 there was no compliance and hence there is contempt of court which should be punished.

17. The 1st respondent submitted that Order 45 of the Civil Procedure Rules gives the principles upon which a review order should issue which the petitioner has failed to demonstrate. The alleged disability occurred in the year 2020 which is not the case as this was the year of assessment and which contradict the pleadings that the petitioner was injured in the year 1989 and when he was issued with retirement notice he initiated the process of registration. The court made a finding of fact and law and to seek a review is to invite the court on appeal against its findings and the application should be dismissed with costs.

18. The 2nd and 4th respondents submitted that the petitioner is in abuse of court process as demonstrated by the various applications filed. Judgment issued on 30th June, 2022 when the petitioner was to retire and upon the judgment, such fact took into effect and to seek stay of the judgment would be an order of reinstatement which was not the issue in the petitioner. This would invite the court to sit on appeal of its judgment after presiding over the matter to a conclusion and hence functus officio.

19. Under Order 45 of the Civil Procedure Rules, the principles upon which a court can review its judgment have not been met. Where disability is alleged to have occurred in the year 1989, the petitioner only applied for registration upon being issued with notice of retirement contrary to Rule 70 of the PSC Regulations which requires that an employee such as the petitioner should have been registered at least 3 years prior to retirement so that he would have been in the database. Such process was delayed and the petitioner cannot blame the respondent for not being vigilant.

20. The motion on contempt of court is bad in law and should be dismissed with costs taking into account the petitioner has abused the court process by filing different applications and then failing to attend court without good cause.

Determination 21. The twin issues for determination are whether the court should review its judgment delivered on 30th June, 2022 and whether there is contempt of court by the respondents.

22. An answer to the first issue would automatically deal the second part.

23. On 31st October, 2022 when all the parties were in court, the Presiding Judge Rika, J directed the petitioner as follows;(5)the petitioner in the meantime should consider amending his Application to invoke the relevant Review Rules, which regulate Procedure in this Court.

24. This is important to address because, an applicant seeking a review of the court orders should file his application in accordance with Section 16 of the Employment and Labour Relations Court Act, 2011 read together with Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016. This much the petitioner was guided and directed by the court on 31st October, 2022.

25. There is no compliance.

26. The instant application is premised on the provisions of the Civil Procedure Act and the Rules thereto.

27. Under Rule 33 of the Court Rules, an applicant seeking an order of review should abide the following;33. (1)A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling—(a)if there is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made;(b)on account of some mistake or error apparent on the face of the record;(c)if the judgment or ruling requires clarification; or(d)for any other sufficient reason.

28. The petitioner is seeking for the review of the judgment delivered on 30th June, 2022 on the grounds that;the petitioner has sufficient reasons for seeking review of the judgment being that the petitioner’s rights as a person with disability automatically exists as he fits into the definition of disability in the Persons with Disability Act.the petitioner’s disability exists as a fact whether registered or not and his rights automatically exists as they are not conferred by the Act and the Constitution of Kenya.the Petition herein constitutes a constitutional matter which is not time barred.The alleged delay in filing the Petition ought not to be read much into since it was within his right to plead his disability to continue in service a per the government policy for persons with disability.

29. On these issues addressed as comprising matters for review, the court in judgment analysed the facts of the petitioner work injury in the year 1989 and his registration as a person with disability on 4th May, 2020 which facts are not contested. With regard to employment and retirement age, such was analysed vies-a-vies the law and the PSC Regulations applicable with regard to extension of time to retire at 65 years for a person with disability who must be registered at least 3 years prior to the retirement age. Such matters are analysed at length with a finding.

30. The fact of the petitioner having a disability is not negated in the judgment. Registration as a person with disability is a right secured in law, the Persons with Disabilities Act save, with regard to the retirement age, there exists regulations recognised under the same law and published by the Public Service Commission. These facts are not controverted.

31. An application for review is hence not a forum to re-litigate but is regulated under the Court Rules and should relate to discovery of new matter, an error apparent on the face of the record, need for clarification or for good cause which matters are not addressed herein. To invite the court to make a different finding from the one made is to appeal before the same forum contrary to the provisions of Section 17 of the Employment and Labour Relations Court Act, 2011. Such invitation cannot apply.

32. The application seeking review as couched by the petitioner cannot issue.

33. With this finding, to find the respondents in contempt of court would be to negate the finding above which formed the foundation of the same. Upon the judgment on 30th June, 2022 the claimant retired from the service. The facts of his petition changed.

34. To seek a stay of the judgment, would be to revert to a position that does not exist with the fact of retirement having taken effect as of 15th July, 2022 when the petitioner filed his application seeking review.

35. Accordingly, application dated 15th July, 2022 and application dated 18th January, 2023 are found without merit and are hereby dismissed. Each party shall bear own costs.

36. The petitioner enjoyed interim orders for good cause to allow the court address the various matters herein and shall not be penalised for any benefits accrued during the pendency of the interim orders.

DELIVERED IN OPEN COURT AT MOMBASA THIS 30TH DAY OF OCTOBER 2023. M. MBARŨJUDGE