Automated Summary
Key Facts
Charles Kimathi Buni, a police officer employed since 1990, was charged in 2003 with failing to prevent theft but acquitted in 2003 due to an unqualified prosecutor. Despite this, his powers and privileges were placed in abeyance via an interdiction letter dated 18/6/02 (received in 2007), and his salary was stopped in 2007. The court dismissed his judicial review application, ruling he must first seek certiorari to quash the salary stoppage decision before pursuing mandamus or prohibition. The case highlights procedural issues in police dismissal processes and the inapplicability of judicial review for contractual salary disputes.
Issues
- The court examined if the Commissioner of Police's interdiction of the applicant's duties and the stoppage of his salary were lawful, especially since no formal dismissal letter was provided and the interdiction was delayed by five years.
- The court determined that mandamus and prohibition were not suitable remedies as the applicant needed to challenge the salary stoppage decision first via certiorari, rather than seeking reinstatement or deployment directly.
- The court considered if the applicant's claims about his employment status and salary were better suited for common law remedies under his employment contract, as opposed to administrative law through judicial review.
Holdings
The court dismissed the application for judicial review, finding that the requested orders (mandamus and prohibition) could not issue. The court held that the applicant should have first sought an order of certiorari to quash the decision to stop his salary before pursuing other reliefs. It further determined that mandamus cannot compel a public body to act in a specific manner, and the contractual relationship between the applicant and the police force should be addressed through common law remedies or proper procedures. The application was deemed to lack merit and was dismissed with each party bearing their own costs.
Remedies
- The court found the notice of motion lacked merit and dismissed the application for judicial review.
- The court ordered that each party bear their own costs in the case.
Legal Principles
- The court highlighted that the applicant was denied procedural fairness under natural justice principles. The interdiction notice was delayed for five years, and no dismissal letter or reasons were provided. The respondent failed to present evidence of proper dismissal procedures, leaving the interdiction in effect without due process.
- The court emphasized that judicial review orders like mandamus and prohibition cannot quash existing decisions but require certiorari for that purpose. Mandamus compels a public body to perform a duty, but cannot direct the method of performance. Prohibition prevents unlawful decisions but cannot retroactively quash prior actions. The applicant's challenge to the salary stoppage required certiorari to quash the decision before seeking mandamus.
Precedent Name
KENYA NATIONAL EXAMINATION COUNCIL V REP. ex parte GITHINJI
Cited Statute
Police Act
Judge Name
R.V.P. Wendoh
Passage Text
- It is not enough to just allege and leave it at that. The Respondent had a duty to lay before the court all the evidence they have enabled the court fairly determine this matter. So far there is no evidence laid before the court to demonstrate that the Applicant has been dismissed from the force.
- An order of certiorari lies to quash a decision made in excess or without jurisdiction... That decision should be quashed first before the Respondent can be compelled to pay.
- The letter of interdiction dated 18/6/02 is said to have been received on 4/10/07, 5 years after it was allegedly written... If there is any due process to be followed in dismissal of a police officer, it has not yet been put into effect.