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Justice James Rika. Last week, the judge held that police are not barred from doing business and that the vetting team should have considered that factor before sending the officers home.
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Courts give contradicting rulings on sacked police officers
Dozens of police officers who challenged their removal from office after failing the integrity test during vetting years ago have split the courts, with judges delivering contradicting decisions in cases that presented similar arguments.
The contradicting rulings have resulted in some police officers returning to work despite their inability to explain the source of their wealth to the National Police Service Commission (NPSC), which was tasked with weeding out rogue officers from one of Kenya’s most corrupt institutions.
The vetting team, led by then NPSC Chief Executive Johnston Kavuludi, started the vetting of police officers on the morning of November 25, 2013 in line with the Constitution that had been promulgated three years earlier.
Mr George Mburugu Ikiara had risen to the rank of chief inspector of police when it was his turn to face a vetting panel on August 23, 2016.
At the time, Mr Ikiara was serving as a driving test examiner in Eldoret under the Traffic Department.
After filling out a pre-vetting questionnaire, it was time for him to face the Kavuludi team, which had elicited fear among officers as it would wade into their privacy in search of the smallest hint of corruption or behaviour unwanted in the police service.
Scrutiny of mobile money transactions and bank account statements of individual officers had become one of the key tools Mr Kavuludi’s team employed to trace illicit funds received or sent by cops.
Unholy alliance
In Mr Ikiara’s case, the vetting team traced a seemingly unholy alliance between the officer and four of his superiors — Kennedy Obusuru Rucho, Polycarp Akoko Ochieng, Peter Katheka and John Wainaina Laban — involving millions of shillings transacted through mobile money transfer platform M-Pesa.
The four had transacted over Sh3.3 million among themselves, and the vetting panel felt it could not ignore this. When Mr Ikiara was asked why he was trading amounts larger than his declared income with superiors, the officer insisted that they were all in business. The same question was put to Mr Rucho, Mr Ochieng, Mr Katheka and Mr Laban, and they also said they were in business together.
But each officer mentioned a different type of business as the source of the Sh3.3 million, which raised even more questions.
Mr Ikiara said he sold maize and clothes. Mr Ochieng mentioned maize and a cyber café, while Mr Rucho attributed the money to 25 guinea fowls he jointly owned with colleagues.
Interestingly, Mr Rucho denied being in the same businesses that Mr Ikiara attributed his financial muscle to. The vetting panel sent all three officers home.
But last week, High Court judge James Rika agreed with Mr Ikiara’s argument that the vetting team was wrong not to consider that the police officer had been in employment for 24 years and that he also had access to sacco loans.
The judge held that police are not barred from doing business and that the vetting team should have considered that factor before sending the officers home.
But NPSC defended its decision, saying, other colleagues that Mr Ikiara claimed to be in business with had unsuccessfully sued to overrule the vetting rulings.
Justice Rika held that the failed petitions were not sufficient ground to dismiss Mr Ikiara’s case, and questioned if NPSC considered whether the other officers could have lied during vetting on the nature of business they conducted.
Mr Ikiara had also argued that Mr Kavuludi himself was not present for the August 23, 2016 vetting, but signed off on the ruling.
Justice Rika held that this alone was grounds enough to rule in favour of Mr Ikiara as previous court rulings have determined that only participants in such a process can sign off on deliberations.
The judge also took issue with some of the jokes and attitude that Commissioner Mary Owuor approached Mr Ikiara’s vetting with, arguing that it showed that the panel may have been biased against the officer.
Mr Ikiara will now return to work in the same rank, with full benefits due, and without loss of salary.
This means that if Mr Ikiara has not been paid, owing to the vetting removal, he will be due for all salary since 2016 when he was ejected.
He was among 127 officers kicked out in 2016 on account of unexplained M-Pesa and bank remittances from colleagues, the public and players in the transport industry.
Different outcomes
As Justice Rika was delivering his decision, Justice Nzioki wa Makau was also reading out a judgment on a petition filed by Mr Ochieng.
Mr Ochieng had raised similar arguments as Mr Ikiara.
Mr Ochieng was also a chief inspector of police, and at the time, a driving test examiner in Eldoret.
He argued that his vetting was presided over by Mr Ronald Musengi, yet the decision to remove him from service was signed off by Mr Murshid Mohamed. Mr Mohamed was not present during Mr Ochieng’s vetting.
Just like Mr Ikiara, Mr Ochieng argued that the panel used evidence provided by another officer — Mr Rucho — during a separate vetting process without giving an opportunity to cross examine him.
But Justice Makau ruled that NPSC had done its job as provided for in the Constitution and that Mr Ochieng had not provided enough evidence to show that there was any wrongdoing in his dismissal from the police service. The judge held that the NPSC gave Mr Ochieng a chance to defend himself and reveal the source of his undeclared wealth, twice — once at the initial vetting and later during a review of the decision.
The two rulings have once again brought to the fore the difficulty with the law, when two similar cases get different outcomes despite the arguments and subject matter being the same. Five years ago, another High Court judge ruled in a similar manner to Justice Makau.
Justice George Odunga, while reinstating Evans Momanyi Getembe to the police service, held that commissioners in panels like the ones that vetted police officers cannot miss proceedings and then take part in decision making.
In 2018, Justice Hellen Wasilwa also found herself handling a similar case as police officer Peter Kemboi Chemos was trying to have a vetting decision that kicked him out of the police service overturned.
Justice Wasilwa also ruled that it was wrong for commissioners that were not present during vetting to vote on whether or not to kick out an officer from the police service.
But when Thomas Odero Dullo raised the same argument before Justice Hellen Wasilwa a year later, the judge held that the police officer had been lawfully edged out.
More than 400 police officers were sacked after they were found to have unexplained wealth believed to be proceeds of corruption, but dozens of the affected individuals have returned to work after they successfully challenged some aspects of the vetting process.
Interestingly, most of the court decisions seen by the Nation indicate that successful cases involved officers who contested the fact that commissioners who did not attend their vetting signed off on their removal.
Officers who challenged other aspects of the process largely failed.
For instance, John Wainaina Laban had been vetted out for his alleged association with Mr Ikiara, Mr Ochieng, Mr Rucho and Mr Katheka, only challenged the failure to give adequate opportunity and time to contest his removal.
The court held that Mr Laban had been given a fair opportunity to defend himself but failed the integrity test.
A group of 20 police officers based in Kisumu also failed to overturn their removal after they argued that they were not allowed to call witnesses for the vetting process. Justice Mathews Nduma Nderi dismissed their case in 2019.
