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Petition No. 93 Of 2011 - Concerning Discrimination On Grounds Of Disability

This Petition was filed in the High Court of Nairobi by a former Police Officer who was retired after he was injured in the line of duty. The Petitioner was employed in the Police Force in 2001.  In March 2003 while on official duty, he was involved in a road accident. He sustained a spinal cord injury which resulted in paralysis of his legs.
On 1st of April 2009, the Police Commissioner retired the Petitioner on medical grounds. The Petitioner appealed against his retirement but he was informed through a letter in January 2011 that his appeal was rejected. He then filed this Petition claiming among other things that his retirement on medical grounds amounted to discrimination because of his disability which is against the provisions of the Constitution of Kenya and the Persons with Disabilities Act.
The KNCHR joined this case as Amicus Curiae (friend of the court) to bring to the court a  human rights perspective on the Case in line with Kenyan law and the International Conventions and best practices.
The Respondents in this case were the Attorney General (on behalf of the Commissioner of Police) and the Judicial Service Commission to respond to the issue of the courts being inaccessible to persons with disabilities.
 
The Court had to determine these two key issues; 
  • Whether the dismissal of the Petitioner from the Police Service was in breach of the Petitioner’s rights under the Constitution or other relevant laws. 
  • The extent of the right of access to justice under Article 48 of the Constitution and the duty of the 2nd Respondent (Judicial Service Commission) to ensure Court premises have accessible infrastructure. 

After considering the arguments and documents presented before it by all the Parties to this case, the Court made the following declarations and orders:
  • The timelines provided in section 22 of the Persons with Disabilities Act are clear that all state institutions are required to upgrade their facilities to comply with the provisions of the Act in order to realize the rights of persons with disabilities. The requirement contemplated by section 22 of the Act falls within the measures the State is obliged to take, under Article 27(6) of the Constitution to redress the disadvantage suffered by persons with disabilities. 
  • The Petitioner was awarded his unpaid salary from September 2009 to the date when his appeal against retirement was rejected (January 2011).
  • The Petitioner should not be reinstated since Police Service is a disciplined force and it will not be in the interest of the Service or the Petitioner to be reinstated after such a long absence.
  • Petitioner to be paid his gratuity and pension within 60 days of the judgment if it has not been paid.
  • The petitioner awarded Kenya Shillings 800,000 as general damages.
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