[2019] KEELRC 2230 (KLR)
The court found that its earlier dismissal of the review application was based on the mistaken belief that there was a pending appeal, when in fact the appeal had been struck out prior to the dismissal. This constituted an error apparent on the face of the record. As a result, the court held that the threshold for...
Source-derived case information.
- Citation
- [2019] KEELRC 2230 (KLR)
- Parties
- Applicant: Police Constable Henry Nyakoe Obuba; Respondent: National Police Service Commission; Respondent: Insp. General National Police Service; Respondent: Deputy Insp. General National Police Service; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Petition 14 of 2015
- Procedural Posture
- Review Application / Ruling on Application for Review of Dismissal Order
- Outcome
- review application reinstated; dismissal order vacated
- Judges
- AN Makau
- Legal Topics
- Judicial Review, Disciplinary Proceedings, Removal From Service, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Police Constable Henry Nyakoe Obuba
Applicant
National Police Service Commission
Respondent
Insp. General National Police Service
Respondent
Deputy Insp. General National Police Service
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Dismissal Order
Legal Issues
- 1 Whether the court erred in dismissing the review application on the basis of a pending appeal when the appeal had already been struck out.
- 2 Whether there was an error apparent on the face of the record justifying review of the dismissal order.
Ratio Decidendi
The court found that its earlier dismissal of the review application was based on the mistaken belief that there was a pending appeal, when in fact the appeal had been struck out prior to the dismissal. This constituted an error apparent on the face of the record. As a result, the court held that the threshold for review had been met and reinstated the review application. The dismissal order was vacated, and the parties were directed to take directions on the review motion. Each party was ordered to bear its own costs, as the error was not attributable to either side.
Court Disposition
review application reinstated; dismissal order vacated
Orders
- The review application is reinstated.
- The dismissal of the review motion is vacated.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
PETITION NO. 14 OF 2015
IN THE MATTER OF CHAPTER 4 OF THE BILL OF RIGHTS ARTICLES 1, 2, 3(1),
10, 19, 20, 21, 22, 23, 25, 27(1),(2) AND (3), 28, 41(1), 47(1), 48, 49, 50(1),(2)(a) AND (o),
159(2)(d), 258, 162 & 246(1), (2) &(3) OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF THE EMPLOYMENT ACT
AND
IN THE MATTER OF THE NATIONAL POLICE SERVICE ACT, 2011
AND
IN THE MATTER OF THE FORCE STANDING ORDERS
UNDERTHE POLICE ACT CAP 84 LAWS OF KENYA
AND
IN THE MATTER OF DISCIPLINARY/ORDERLY ROOM PROCEEDINGS
AND
IN THE MATTER OF THE REMOVAL FROM THE POLICE SERVICE
(FORMERLY POLICE FORCE)
BETWEEN
POLICE CONSTABLE HENRY NYAKOE OBUBA..........PETITIONER/APPLICANT
VERSUS
NATIONAL POLICE SERVICE COMMISSION..............................1ST RESPONDENT
INSP. GENERAL NATIONAL POLICE SERVICE..........................2ND RESPONDENT
DEPUTY INSP. GENERAL NATIONAL POLICE SERVICE........3RD RESPONDENT
THE HON. ATTORNEY GENERAL..................................................4TH RESPONDENT
RULING
1. The Petitioner/Applicant filed the application seeking review of the order of this court in September 2018 dismissing the application for review on the basis that the court erred in holding that there was a pending appeal. The Petitioner/Applicant seeks review of the dismissal application as there is an error apparent on the face of the motion. Whereas it was true that an appeal has been preferred, the said appeal was struck out on 21st February 2018 due to the failure of the Respondents (Appellants) to file the record of appeal per the Rules of the Court of Appeal.
2. In disallowing the motion seeking review, I dismissed it whereas there was no appeal. The court thus fell into error and the review application is reinstated. The parties will take directions on the said review motion upon the delivery of this Ruling. The dismissal of the review motion is vacated. Each party will bear their own costs as the error was not attributable to either of them.
It is so ordered.
Dated and delivered at Nyeri this 20th day of February 2019
Nzioki wa Makau
JUDGE
I certify that this is a true copy of the Original
Deputy Registrar