[2022] KEHC 2556 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

PETITION NO. 1 OF 2020

PRAXIDES MUSUNJI BULEMI......................................................................................PETITIONER

VERSUS

THE COMMISSIONER OF PRISONS....................................................................1ST RESPONDENT

THE KENYA PRISONS SERVICE.........................................................................2ND RESPONDENT

THE COMMANDANT,PRISONS STAFF TRAINING COLLEGE, RUIRU.....3RD RESPONDENT

JUDGMENT

1. The petition, dated 4th February 2020, was brought at the instance of Praxides Musunji Bulemi, to be known hereafter as the petitioner, citing several constitutional violations of her rights. She has brought the suit against the Kenya Prisons Service, the Commissioner of Prisons and the Commandant of the Prisons Training College, Ruiru.

2. Her case is that the respondents conducted a recruitment exercise in 2019 for admission to the Kenya Prisons Training College at Ruiru, to be referred hereafter as the college. such exercise was carried out at Isolio grounds, within Shinyalu Sub-County of Kakamega County, on 9th October 2019, which the petitioner attended, and was recruited and was issued with a recruitment card. She was initially due to report for training on 17th December 2019, but the same was brought forward to 30th October 2019. She duly reported and classes commenced. On 13th December 2019, she was summoned to the office of the 3rd respondent, where she was verbally informed that her recruitment card was not genuine, and she was asked to leave the college. She was required to abide by that verbal directive without any questions.

3. The petitioner finally contends that the procedure that was used to arrive at that decision to discontinue her training was not genuine, and was illegal and discriminatory. She contends that the respondents did not observe the provisions of the Fair Administration Act, No. 4 of 2015, as they never gave her a written decision despite her request for it. She also contends that her rights under Article 47 of the Constitution were violated. She avers that the act of discontinuing her training was discriminatory to the extent that it only affected her out of all the recruits undergoing training at that time. She says that she has lost her legitimate expectation to be gainfully employed and to participate in nation building, and has affected her rights to equal opportunity provided for under the Constitution.

4. The Petitioner seeks the following reliefs:

(1) general damages for violation of her constitutional rights;

(2) An order for reinstatement as a student at the Prisons Staff Training College, Ruiru; and

(3) Costs.

5. The Attorney General responded to the petition, by way of an affidavit, sworn, on 4st March 2020, by Joseph Mutevesi, a Deputy Commissioner of Prisons and Director of Administration and Personnel. It is conceded that the 2nd respondent had carried out an exercise to recruit prison constables. It is averred that the potential candidates were warned against engaging in corrupt activities in a quest to influence the recruiting officers. It is conceded that the petitioner participated in the exercise that was undertaken at Isolio, and that she reported at the college for training. He avers that after the recruitment exercise the 2nd respondent received intelligence to the effect that the recruitment exercise had been marred by malpractice, and that the petitioner had canvassed and gave a bribe to the recruiting officers prior to the recruitment day. It is stated that the petitioner was subsequently discontinued as per the 2nd respondent’s regulations. He also states that the 2nd respondent took action against all the recruitment officers affected. Attached to that affidavit are copies of the advertisement for the positions the subject of these proceedings, and a copy of an excerpt of the Prisons Act, Cap 19, Laws of Kenya.

6. Directions were given on 23rd March 2021, that the amended petition be disposed of by way of written submissions. From the record before me, it is the written submissions on record, on the petitioner filed written submissions, on 12th June 2021, dated 11th June 2021.

7. The petitioner reiterates that she attended a recruitment drive mounted by the 2nd respondent for prisons warders and wardresses, and was recruited, she was admitted at the training college for the 2nd respondent at Ruiru, and remained there until her studies were terminated on 13th December 2019. On 17th January 2020 she sought reasons for her termination, but none were given until this petition was filed, when they were furnished to her vide the relying affidavit, filed herein by the 3rd respondent, but were no supported by any evidence. She submits that her rights were violated, as she was never given a hearing nor written reasons as to why action was to be taken against her, contrary to Article 47 of the Constitution. She submits that she was entitled to administrative action, which was expeditious, efficient, lawful, reasonable and procedurally fair. She submits that the action of discontinuing her training, for which she was qualified, without giving her a hearing, was illegal and unconstitutional. She submits that the Administrative Action Act, No. 4 of 2015 sets out principles on how an administrative body could ensure that fairness was maintained. These are set out in section 4(3), and include prior and adequate notice of the nature and reasons for the proposed administrative action, opportunity to be heard and to make representations in that regard, a notice to a right to review or to internal appeal against the administrative action decision, a statement of reasons, a notice to a right to legal representation, and information materials and evidence to be relied on in making the decision or taking the administrative action. She submits that the respondents did not comply with any of those principles and procedures, and the resultant decision was, therefore, illegal and ought to be revised by the court. She argues that the replying affidavit essentially admits the fact that those principles and processes were not followed. She submits that no reports relating to the offering and payment of bribes by the petitioner were provided to her as required by the law. She specifically submits that no notice was given prior to the meeting of 12th December 2019 giving her notice of the nature and reasons for the proposed action, no opportunity was given to her to be heard, no written reasons were given even after demand was made. She asserts that her rights under Article 47 were violated, the respondents did not follow the rules of natural justice, she will suffer irreparable damage as she would lose a chance of getting employed and earning a living, and her treatment amounted to discrimination. She would like to be reinstated. She submits that there were violations of Articles 19, 20, 21, 27, 28, 47 and 50 of the Constitution. She asserts that she is entitled to compensation under Article 23(1), and cites MWK &. another vs. Attorney General & 3 others [2017] eKLR (Mativo J). She also relies on Judicial Service Commission vs. Mbalu Mutava & another[2015] eKLR (Githinji, Nambuye, Karanja, Mwera & Ouko JJA) and Mohamed Sheria & 2 others vs. Simon Kipkorir Sang & 5 others[2018] eKLR (Rika J).

8. There are only two issues that I need to determine in this petition. Firstly, is the question as to whether the petitioner has made out a case for violation of her rights. Secondly, is, in the event that I find that her rights were violated, the matter as to whether she is entitled to the remedies that she has sought in the petition.

9. On whether the petitioner has made out a case for violation of her rights, I find the case by the petitioner fairly straightforward, and as it is admitted by the respondents on the facts. She was recruited as a trainee prisons wardress and was admitted to college, she attended classes, and was subsequently expelled, on grounds communicated to her verbally, that her recruitment card was not genuine. That being the case the respondents did not contest the background that she was recruited in an exercise that they conducted, and that she was admitted to their college, and attended classes. Their case is that they had intelligence that that her recruitment was marred by malpractice, for she had canvassed and given a bribe to a recruiting officer, hence he expulsion from the college.

10. The respondents are administrative bodies, and the actions to recruit trainee prison warders and wardresses, admit them to college and expel them are all administrative. They, therefore, fall under the actions contemplated in Article 47 of the Constitution and the Fair Administrative Actions Act. Any steps to be taken against any person who is subject to any such actions must be in conformity with the principles set out in Article 47 and section 4(3) of the Fair Administrative Action Act. That would mean being given notice of the nature and reasons for the proposed administrative action, being given an opportunity to be heard and to make representations in defence before the action or decision is taken, being given notice of a right to review or right to appeal the administrative decision or action, being notified of the right to legal representation where applicable, and being furnished with information and evidence marshalled against you and that is proposed to be relied upon in the case against you. An administrative action would only be deemed to be fair where the principles and procedures set out in section 4(3) of the Fair Administrative Action Act are complied with.

11. The decision or action complained of is that of asking the petitioner to leave the training college. In short, the decision or action to expel her. She avers that she was simply called to the office of the 3rd respondent, and informed verbally that her documents were not genuine, and told to leave the college. If her version of events is true, then it would mean that the requirements of section 4(3) were not met. She was not given prior notice of the nature and reasons of the proposed action before the decision was arrived at, she was not afforded an opportunity to be heard and to make representations before the decision was made, she was not informed of a right to seek review or appeal against the decision or expulsion action, and the respondents did not share with her the material and evidence that they were to rely on in making the decision or taking the action against her. Clearly, there was no fair hearing, and the principles of natural justice were violated, and so were the principles in Article 47 of the Constitution.

12. The respondents case is that the recruitment exercise was marred by corruption and malpractice, and the petitioner was among those involved, for she canvassed and bribed recruiting officers prior to the recruitment, and she was discontinued as a recruit on that score. The documents attached to their papers are copies of the advertisement for the recruitment and a copy of the Prisons Act. None of these documents meet the criteria of what section 4(3) of the fair Administrative Action Act envisages. There is no evidence that the respondents gave prior and adequate notice to the proposed discontinuance and the reasons for it, or evidence that the petitioner was given a chance to be heard on the matter, or given notice that there was a right to seek review or appeal on that decision, or that she was furnished with the evidence that the respondents had against her. The respondents have made no effort to demonstrate that the principles of natural justice were applied in the manner they handled the discontinuation of the petitioner’s studies. They have also not made an effort to demonstrate that the processes and principles set out in Article 47 and section 4(3) of the Fair Administrative Action Act were complied with.

13. I agree with the petitioner, that since the respondents have not justified their action, of denying her, her right to complete her training, and since they have provided no evidence that they had the right to make the decision that they made, the petitioner is entitled to be reinstated to her position as a prisons wardress recruit at the Prisons Staff Training College, to complete her training. The manner that the petitioner was handled by the respondents amounted to mistreatment, and a gross violation of Article 47 of the Constitution, for the discontinuance of her training was not efficient, lawful, reasonable and procedurally fair. Consequently, she is entitled to compensation or damages.

14. Consequently, the final orders that I shall make are as follows:

(a) award the petitioner Kshs. 500, 000. 00 for violation of her constitutional rights;

(b) order reinstatement of the petitioner as a student at the Kenya Prisons Staff Training College at Ruiru; and

(c) award costs of the suit to the petitioner.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OF FEBRUARY 2022

W MUSYOKA

JUDGE

MR. ERICK ZALO, COURT ASSISTANT.

MR. MOMANYI, INSTRUCTED BY MOMANYI MANYONI & COMPANY, ADVOCATES, FOR THE APPLICANT.

MR. TARUS, MS. WERE AND MS. MUSUNDI, INSTRUCTED BY THE ATTORNEY GENERAL.