Busienei v National Police Service Commission & another (Petition 1 of 2020) [2022] KEELRC 161 (KLR)
The bottom line
#A retired police officer's discrimination claim failed because his constitutional petition was too vague, not because his claim lacked merit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition has met the competence threshold for a constitutional reference.
- 2.Whether the respondents violated the constitutional rights of the petitioner during his service.
- 3.Whether the petitioner is entitled to the reliefs sought.
Key legal issues
#Whether the petition met the competence threshold for a constitutional reference
It did not; the pleading defect was fatal
The petitioner alleged violations of Articles 27(4), 28, 29, 41(1) & (2)(b) and 54(1) only in omnibus terms, without particulars of the manner of infringement. The court applied Anarita Karimi Njeru and Mumo Matemu, holding that respondents were prejudiced and the court could not effectively adjudicate. The petitioner was given leave to amend but abandoned it, and also abandoned leave to file a further affidavit, and did not file submissions.
Whether the petitioner was entitled to the reliefs sought
No relief could issue given the petition's failure of the competence threshold
Having found the petition incompetent, the court did not proceed to determine the merits of the alleged discrimination based on Vitiligo, failure of reasonable accommodation, or violation of Articles 28 and 54. The reliefs were refused solely on the pleading defect, not on the merits.
Legal principles established
#- A constitutional petition must set out with reasonable precision the complaint, the provisions said to be infringed and the manner of infringement; omnibus allegations without particulars fall below the competence threshold
Court orders
#- 1.The petition is struck out with no order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 246 of the Constitution read with the ELRC jurisdiction; constitutional petition under Articles 27, 28, 29, 41 and 54
Relief refused
#Declaration that the petitioner's right not to be discriminated against under Article 27(4),(5),(6),(7) of the Constitution and Article 7 of the Universal Declaration of Human Rights was violated
Petition failed the competence threshold for a constitutional reference; reliefs cannot issue on a defective petition
General damages for unfair treatment, economic hardship and deprivation of livelihood
Same competence defect; no relief could be granted
Costs of the suit and interest at court rates
Court ordered no order as to costs
Costs
No order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the observations and findings herein above that the petition does not meet the competency threshold of a constitutional reference, the reliefs sought cannot issue. Therefore the petition is struck out with no order as to costs.
The court finds and holds that the said defect in the petition is fatal as the petition falls short of the competence threshold required for a constitutional petition.
Without such precise pleadings of the law and facts, the respondents are prejudiced as they cannot adequately respond to the shoddily drafted pleadings.
Issues in the judgment
#Case number/neutral citation not stated anywhere in the judgment
Judgment refers to reliefs heading 'Whether the petitioner is entitled to the relief sought' but the issue list states 'Whether the respondents violated the constitutional rights of the petitioner during his service' which is then never expressly answered on the merits
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Busienei v National Police Service Commission & another (Petition 1 of 2020) [2022] KEELRC 161 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/161/eng@2022-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.