[2019] KEELRC 774 (KLR)
The court found that it had erroneously assumed the petitioner had been terminated from service at the time of judgment, overlooking a binding consent order that preserved his employment status. This constituted an error apparent on the face of the record. The court held that the three-year limitation on...
Source-derived case information.
- Citation
- [2019] KEELRC 774 (KLR)
- Parties
- Petitioner: Lawrence Mwaura Njoroge; Respondent: National Police Service Commission
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 12 & 17 of 2016
- Procedural Posture
- Petition / Ruling on Application for Review of Judgment
- Outcome
- application for review allowed
- Judges
- HS Wasilwa
- Legal Topics
- Judicial Review, Reinstatement, Error on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Mwaura Njoroge
Petitioner
National Police Service Commission
Respondent
Procedural Posture
Petition / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether there was an error on the face of the record in the court's judgment regarding the petitioner's employment status.
- 2 Whether the petitioner was entitled to a review and setting aside of the orders in paragraph 48 of the judgment.
- 3 Whether the petitioner should continue to serve in the National Police Service or be considered retired.
Ratio Decidendi
The court found that it had erroneously assumed the petitioner had been terminated from service at the time of judgment, overlooking a binding consent order that preserved his employment status. This constituted an error apparent on the face of the record. The court held that the three-year limitation on reinstatement was inapplicable since the petitioner had not been removed from service. Consequently, the court reviewed and set aside the erroneous order, substituting it with an order that the petitioner continues to serve in the National Police Service until retirement or lawful removal.
Court Disposition
application for review allowed
Orders
- Paragraph 48 of the judgment is reviewed and set aside.
- It is substituted with an order that the petitioner continues to serve in the National Police Service until retirement age or unless lawfully removed for any other reason.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION 12 OF 2016 & PETITION 17 OF 2016
(Before Hon. Lady Justice Hellen S. Wasilwa on 18th September 2019)
LAWRENCE MWAURA NJOROGE....................................PETITIONER
VERSUS
THE NATIONAL POLICE SERVICE COMMISSION....RESPONDENT
RULING
1. The Applicant/Petitioner, Lawrence Mwaura Njoroge filed a Notice of Motion application dated 7th March 2019 for orders that this Honourable Court be pleased to stay its orders in paragraph 48 of its Judgment delivered 11th February 2019 and further review and set aside the orders in the said paragraph. He also seeks for the prayers sought in the Amended Petition dated 8th June 2018 to be granted and that the costs of this Application be provided.
2. The Application is based on the grounds that after judgment was delivered, the Applicant moved the court for the interpretation of paragraph 48 of the Judgment. That when the application dated 18th February 2019 came up for hearing on 27th February 2019, the Court informed the parties that it arrived at that decision since it was over 3 years and it could not issue an order for reinstatement.
3. That the parties had entered into a consent on 6th June 2018 for the Respondent not to remove the Applicant from its service pending the hearing and determination of the amended Petition. That from this consent, it is clear that the Applicant was still in employment and the reason for the Court not to grant the prayers sought in the Amended Petition is an error on the face of the record because the issue of 3 years only arises when a party is not in employment and seeks reinstatement. That this error requires review and to be set aside and that this Application is merited, brought in good faith and within reasonable time after seeking interpretation.
4. The Applicant also filed a Supporting Affidavit dated 7th March 2019 where he avers that this court has jurisdiction to hear and determine the issue of the error on the face of the record. He annexes documents marked LMN 1 in support of his Application and avers that no prejudice will be occasioned to the Respondent as the Honourable Court has already determined at paragraph 47 that the Respondent’s decision to declare the Applicant unfit is null and void.
5. The Respondent, National Police Service Commission filed its Grounds of Opposition dated 3rd April 2019 opposing the Application herein on the grounds that:
a) The entire application as framed is evidently misconceived.
b) The Application is brought in bad faith and is clearly an abuse of the court process.
c) It is only just and fair that the Application be dismissed with costs to the Respondent.
6. The Applicant submits that he seeks for orders 3, 4 and 5 in his Application since 1 and 2 have been dispensed with and that he has annexed the consent order to the application to prove the abovementioned on the face of the record. That the Respondent having not filed an affidavit means that the facts he raised are admitted and that what he needs to address the Court on are the points of the law. He prays for the application to be allowed.
7. The Respondent never filed its submissions.
8. I have examined all the averments before me. I note that indeed on 6th June 2018 the parties herein entered a consent before this Court and agreed not to remove the Applicant from the services of the Respondent pending hearing and determination of the Petition.
9. It was therefore an error on the part of this Court to assume that the Petitioner had already been terminated at the point of delivery of the judgment on 11th February 2019. It is based on this understanding that I made an order that the Petitioner be considered to have served in the police service and be retired accordingly in the normal course of service with effect from the date of the judgment.
10. Given that obvious error, I review my judgment at paragraph 48 and substitute with a finding that the Petitioner continues to serve in the National Police Service until he reaches his retirement age or unless removed lawfully for any other reason.
11. Costs to the Petitioner.
Dated and delivered in open Court this 18th day of September, 2019.
HON. LADY JUSTICE HELLEN WASILWA
JUDGE
In the presence of:
Oduor for Petitioner – Present
Respondent – Absent