Automated Summary
Key Facts
Anne Mwende was shot by police constable Bernard Imosia Kilemba on 23 October 2006 at Reuben Police Post while reporting a lost identity card. The bullet caused a severe spinal injury. Despite multiple complaints and letters from 2007 to 2013 requesting an inquiry, no investigation was conducted by the Inspector General of Police. The court found the respondents failed to act on their statutory duty under Article 47 of the Constitution and Section 87 of the National Police Service Act, granting mandamus to compel an inquiry within 30 days of the court order.
Issues
The court determined whether a mandamus order could compel the Inspector General of Police to investigate Anne Mwende's 2006 shooting at Reuben Police Post. The applicant argued the police had a statutory duty under Section 87 of the National Police Service Act and Article 47 of the Constitution to act on her complaints. The Respondents claimed the application was frivolous due to the 10-year delay and absence of an official report in the Occurrence Book. The court held that the police's failure to investigate constituted an unlawful delay and that mandamus was an appropriate remedy to enforce their duty.
Holdings
The court found that the Inspector General of Police and respondents failed to fulfill their statutory duty to investigate the 2006 shooting incident involving Anne Mwende, despite multiple complaints over 10 years. The court ruled this inaction irrational and unlawful under Article 47 of the Constitution and the Fair Administrative Action Act, 2015. An order of mandamus was issued compelling the Inspector General to lodge an inquiry within 30 days of the order's service.
Remedies
- The court issued a mandamus compelling the Inspector General of Police to lodge an inquiry into the shooting of Anne Mwende that occurred on 23rd October 2006 at Reuben Police Post, to be commenced within 30 days of service.
- The applicant was awarded the costs of the application by the court.
Legal Principles
The court applied Article 47 of the Constitution and Section 7(2)(j) of the Fair Administrative Action Act, 2015, emphasizing the duty of public officers to act expeditiously and lawfully. Mandamus was granted as a remedy to compel the Inspector General of Police to perform a statutory duty of investigating the applicant's complaint under the National Police Service Act, Section 87, despite the lapse of over 10 years since the incident. The judgment highlighted that unreasonable delay in discharging a statutory obligation constitutes an abuse of discretion and unlawful failure to act.
Precedent Name
- Shah vs. Attorney General (No. 3)
- Judicial Service Commission vs. Mbalu Mutava & Another
- Kenya National Examinations Council vs. Republic exp Geoffrey Gathenji Njoroge & Others
Cited Statute
- Fair Administrative Action Act, 2015
- National Police Service Act, No. 1A of 2011
Judge Name
G V ODUNGA
Passage Text
- 26. Under section 7(2)(j) of the Fair Administrative Action Act, 2015, a court or tribunal under subsection (1) may review an administrative action or decision, if there was an abuse of discretion, unreasonable delay or failure to act in discharge of duty imposed under any written law. In this case, the Respondents are expected to expeditiously deal with complaints made against the police. To take more than 10 years before addressing a complaint and then rely on such lapse of time to decline to carry out a statutory duty in my view is irrational and unlawful.
- 29. In the result, an order of mandamus is hereby issued compelling the Inspector General of Police to lodge an inquiry into the shooting of Anne Mwende that occurred on the 23rd October, 2006 at Reuben Police Post. The said inquiry is to be commenced within 30 days from the date of service of this order upon the Inspector General of Police.
- 25. The applicant has exhibited copies of documents including Police Form 3 (P3 Form) and letters written on behalf of the Provincial Police Officer showing that as early as February, 2007, she had reported the matter to the police. The Respondents contend that since no OB record of the incident was made, the investigations cannot be conducted. With due respect, the applicant, it has not been shown, is a police officer hence the OB was not in her custody. Having made a report in whatever manner, it was upon the Respondents, in line with its mandate as a service to take a pro-active action in the matter and undertake the necessary investigations. The Respondents cannot be permitted to get away with the failure on its part to adhere to the provisions of Article 47 of the Constitution and contend that due to time lapse, an inquiry is not feasible.