[2015] KEHC 3524 (KLR)
The High Court lacks jurisdiction to entertain and grant the orders sought because it cannot sit on appeal over a decision made by a court of concurrent jurisdiction. The applicant, if aggrieved by Justice Muriithi's ruling, should have pursued an appeal rather than initiate fresh proceedings before another judge of...
Source-derived case information.
- Citation
- [2015] KEHC 3524 (KLR)
- Parties
- Applicant: Zelea Jakaa Akiru; Respondent: The County Commander Kenya Police – Mombasa; Respondent: Regional Co-ordinator Kenya Police Service Coast; Respondent: Inspector General of Kenya Police Service; Respondent: The Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 32 of 2015
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objections
- Outcome
- preliminary objection upheld; application dismissed for want of jurisdiction
- Judges
- GO Shikwe
- Legal Topics
- Jurisdiction of High Court, Retrospective Application of Judgments, Disciplinary Proceedings Police, Constitutional Validity of Statutes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zelea Jakaa Akiru
Applicant
The County Commander Kenya Police – Mombasa
Respondent
Regional Co-ordinator Kenya Police Service Coast
Respondent
Inspector General of Kenya Police Service
Respondent
The Honourable Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objections
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain and grant the orders sought in light of a previous judgment by a court of concurrent jurisdiction.
- 2 Whether the declaration of unconstitutionality of section 88(4) of the National Police Service Act operates retrospectively.
- 3 Whether the applicant should have appealed the previous decision rather than seek relief in a court of concurrent jurisdiction.
Ratio Decidendi
The High Court lacks jurisdiction to entertain and grant the orders sought because it cannot sit on appeal over a decision made by a court of concurrent jurisdiction. The applicant, if aggrieved by Justice Muriithi's ruling, should have pursued an appeal rather than initiate fresh proceedings before another judge of the same court. Furthermore, the declaration of unconstitutionality of section 88(4) of the National Police Service Act by Justice Ongaya does not operate retrospectively and therefore does not affect the prior disciplinary proceedings or the orders previously issued. The preliminary objections are upheld for want of jurisdiction.
Court Disposition
preliminary objection upheld; application dismissed for want of jurisdiction
Orders
- The preliminary objections dated 3rd and 4th June, 2015 are upheld.
- The court lacks jurisdiction to entertain and grant the orders sought in the application.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CONSTITUTIONAL PETITION NO.32 OF 2015
ZELEA JAKAA AKIRU ….......................PETITIONER
VERSUS
THE COUNTY COMMANDER
KENYA POLICE – MOMBASA ...... 1ST RESPONDENT
REGIONAL CO-ORDINATOR
KENYA POLICE SERVICE
COAST …............................................ 2ND RESPONDENT
INSPECTOR GENERAL OF KENYA
POLICE SERVICE …................... 3RD RESPONDENT
THE HONOURABLE ATTORNEY
GENERAL …................................. 4TH RESPONDENT
RULING
In my ruling dated 14th June, 22015 I did note that in his Judgment dated 20th January, 2015 Muriithi, Judge did state that the police have authority to commence disciplinary action under section 88 (4) of the National Police Service Act notwithstanding Criminal Prosecution for the conduct which is against the law and also constitutes an offence against discipline. He proceeded to discharge the interim orders restraining the conduct of orderly room proceedings against the ex parte applicant.
In the interpartes hearing I invited the parties to address me on the relevance of a decision made by Justice Byram Ongaya in Nyeri on 5th June, 2015 whereby he declared section 88 (4) of the National Police Service as un constitutional as it was inconsistent with article 50(2) of the Constitution. The Court was urged to find that even if the declaration by the Judge was proper it would not operate retrospectively.
Justice Muriithi did determine the issue of orderly room proceedings. In this matter. It was open to the applicant to have lodged an appeal against the decision and orders that flowed from Justice Muriithi's ruling.
This is a Court with concurrent jurisdiction to that of Justice Muriithi. It cannot sit on appeal against the decision of my brother Judge. Justice Byron Ongoya did declare section 88 (4) of the National Police Service as un constitutional. That declaration cannot be held to operate retrospectively.
Before me are two preliminary objections one dated 4th June, 2015 and another dated 3rd June, 2015. I have anxiously gone through them and I am satisfied that I lack jurisdiction to entertain and grant the orders sought in the application. I uphold the preliminary objection. No orders as to costs.
Ruling delivered, dated and signed this 10th day of July, 2015.
….................
M. MUYA
JUDGE
10TH JULY, 2015
In the presence of:-
Ananda holding brief Magolo
Mr. Ngare for Attorney General
Masila holding brief Wamotsa for Director of Public Prosecution
M. MUYA – JUDGE