[2004] KEHC 1235 (KLR)
The court found that the applicants had established a prima facie arguable case regarding the lawfulness of their retirement from the police force, particularly in light of the grounds cited and the requirements of due process under the Public Service Commission Act, regulations, and the Constitution. The court...
Source-derived case information.
- Citation
- [2004] KEHC 1235 (KLR)
- Parties
- Applicant: Julius Odol Noberts; Applicant: Peter Joseph Kimundi; Applicant: George Osewe Wanga; Applicant: Tobias Michael Senyeli; Applicant: Stephen K. Arap Soi; Applicant: Johnson Korir; Applicant: Fredrick Kipkemboi Rotich; Applicant: Titus Karuri Ndungu; Applicant: Ronald M. Mbengeli; Applicant: David Bett; Applicant: John Muema Nzau; Applicant: Duncan K. Mueke; Respondent: Public Service Commission of Kenya; Respondent: The Commissioner of Police; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1365 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Leave and Stay Application
- Outcome
- Leave for judicial review granted; leave to operate as stay of retirement decision; applicants deemed in service for pension purposes but not to resume duty; application to be filed and served within 21 days; costs in the application.
- Judges
- AI Tullu
- Legal Topics
- Judicial Review, Public Service Retirement, Due Process, Certiorari, Pensions, Stay of Decision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Odol Noberts
Applicant
Peter Joseph Kimundi
Applicant
George Osewe Wanga
Applicant
Tobias Michael Senyeli
Applicant
Stephen K. Arap Soi
Applicant
Johnson Korir
Applicant
Fredrick Kipkemboi Rotich
Applicant
Titus Karuri Ndungu
Applicant
Ronald M. Mbengeli
Applicant
David Bett
Applicant
John Muema Nzau
Applicant
Duncan K. Mueke
Applicant
Public Service Commission of Kenya
Respondent
The Commissioner of Police
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave and Stay Application
Legal Issues
- 1 Whether the applicants' retirement from the police force was lawful and in accordance with due process.
- 2 Whether leave for judicial review should be granted to challenge the retirement decisions.
- 3 Whether the grant of leave should operate as a stay of the respondents' decision pending hearing.
Ratio Decidendi
The court found that the applicants had established a prima facie arguable case regarding the lawfulness of their retirement from the police force, particularly in light of the grounds cited and the requirements of due process under the Public Service Commission Act, regulations, and the Constitution. The court recognized the urgency due to the six-month limitation period for certiorari applications and the need for expeditious resolution. Considering Section 16A of the Pensions (Amendment) Act, 2003, which entitles officers to remain in service until gratuity is paid, the court granted leave for judicial review and ordered that the leave operate as a stay of the retirement decision....
Court Disposition
Leave for judicial review granted; leave to operate as stay of retirement decision; applicants deemed in service for pension purposes but not to resume duty; application to be filed and served within 21 days; costs in the application.
Orders
- Leave for judicial review granted as prayed.
- Leave to operate as a stay of the decision dated 5th May 2004 pending hearing of the substantive application.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL NO. 1365 OF 2004
JULIUS ODOL NOBERTS………….…………………..1STAPPLICANT
PETER JOSEPH KIMUNDI……...…………………….2ND APPLICANT
GEORGE OSEWE WANGA………...…………………3RD APPLICANT
TOBIAS MICHAEL SENYELI………….……………..4TH APPLICANT
STEPHEN K. ARAP SOI……………….....……………5TH APPLICANT
JOHNSON KORIR……………………..……………….6TH APPLICANT
FREDRICK KIPKEMBOI ROTICH…………………..7THAPPLICANT
TITUS KARURI NDUNGU…………….………………8TH APPLICANT
RONALD M. MBENGELI……………...………………9TH APPLICANT
DAVID BETT…………….…………………………….10TH APPLICANT
JOHN MUEMA NZAU………………………………...11THAPPLICANT
DUNCAN K. MUEKE…………………………………12THAPPLICANT
VERSUS
PUBLIC SERVICE COMMISSION OF KENYA…..1STRESPONDENT
THE COMMISSIONER OF POLICE………...…….2ND RESPONDENT
THE HON. ATTORNEY GENERAL…….…..……..3RD RESPONDENT
RULING
I have considered the Application dated 13th October, 2004 and counsel’s Submission. I am of the view that there is urgency in the Application considering the limitation period of 6 months with regard to applications relating to certiorari. Besides this the nature of the application and circumstances demand an expeditious resolutions of the matters raised. The Applications are senior and gazetted Officers in the Police Force of Kenya. From the sample of letters of retirement, it would appear that they have been retired on grounds including reorganization of Government and abolition of office. These are not cases of expiry of contract, illness, retirement age or even public interest expressly stated. They have been discharged with recognition, distinction and accolades in respect of their service to the Nation.
The questions raised by this Application are serious and fundamental. They touch on the Due Process within the Public Service. It revolves around the services, Commissions Act regulations made thereunder and even the Constitution.
I hold without any hesitation that the issues herein on a prima facie basis raises an arguable case which ought to be heard on merit.
Therefore I will grant leave as prayed.
With regard to Stay and whether the application should operate as Stay, I am obliged to determine the question one way or the other following the Principles in the court of Appeal decision in SHAH –vs- REPUBLIC.
The Police Force and Institution is a very delicate, sensitive and important one. It provides essential services touching on security of the people of Kenya. As a result the court will take into consideration this factor and ensure that any interim orders given does not lead to any chaos, and disorganization of this constitution.
Mr. Killukumi recognizes this fact as an officer of this court and so do his clients as citizens. They have therefore restricted the extent to which they seek the Stay to operate.
I have read Section 16 A of the Pensions (Amendment) Act 2003 which states that:-
v “16A A person to whom a pension or other allowance is payable under the Act shall be entitled to be retained in the service until the payment in full of the gratuity payable to him consequent upon the exercise by him of his option to receive such gratuity under the Provision of this Act”
This law came into force on 1. 1.2004. As a result of this and the submissions of counsel, this court is inclined to grant an order that the grant of leave do operate as a stay of the decision dated 5th May 2004 to ensure that pending the hearing of the substantive application on merit. The Applicants are given the benefit of doubt at this preliminary stage and allowed to enjoy the said right until the hearing. I therefore do hereby grant prayers:-
2, 3, 4 and 5 of the Chamber Summons.
I do also grant prayer 6 provided always it is limited to the temporary enforcement ofSection 16 A of the Pensions (amendment) Act, 2003. For the avoidance of doubt this strictly means that the Applicants are deemed still to be in the service of the Public Service Commission and the Police. BUT they shall not report back on duty or resume office in any manner whatsoever pending the hearing of that intended Application.
The said Application shall be filed and served within the next 21 days.
Costs shall be in the said Applications.
Dated and delivered at Nairobi this 15th day of October, 2004.
MOHAMMED K. IBRAHIM
JUDGE
Order:
Typed copies of the Ruling to be supplied upon payment.