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Court of AppealDismissedCivil Appeal (ELRC Appeal, Nairobi)

National Environment Management Authority v Wabwoto & 3 others; Law Society of Kenya & 2 others (Interested Parties) (Civil Appeal E276 of 2020) [2025] KECA 276 (KLR)

Court of Appeal
21 February 2025
8,908 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed NEMA must pay its lawyers non-practice and prosecutorial allowances because public bodies must follow Public Service Commission circulars.

What this practically means

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Executive summary

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This was a first appeal by the National Environmental Management Authority (NEMA) against an Employment and Labour Relations Court judgment (ELRC Cause No 547 of 2018) awarding six advocates, recruited from private practice as NEMA legal officers, non-practice and prosecutorial allowances pursuant to public service circulars of June 11, 2010 and October 9, 2012. NEMA argued that the trial court lacked jurisdiction to fix rates not approved by the Salaries and Remuneration Commission (SRC); that the respondents were not ODPP officers; that it could not equate NEMA job grades with public service grades; and that the respondents failed to prove discrimination. The SRC, as third interested party, contended the trial court usurped its mandate and that it was never advised on the allowances. The Court of Appeal dismissed the appeal in its entirety with costs. It held that NEMA, being a public body under section 3 of the Public Service Commission Act, 2017, was bound by the Commission's Human Resource Policy and the two circulars, which applied across the public service legal subsector. The circulars were issued with the approval of, or on the recommendation of, the SRC or its predecessor, the Permanent Public Service Remuneration Review Board, so the SRC's role was spent and no further consultation was required. The respondents, gazetted as public prosecutors by the DPP under section 85(1) of the Criminal Procedure Code, could not be treated differently from other public prosecutors. The grade equivalency and quantum were uncontroverted factual findings that the court, applying Jabane v Olenja, would not disturb. The denial of the allowances constituted unequal treatment amounting to unfair discrimination on arbitrary grounds. The trial court's declarations and monetary awards were affirmed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court had jurisdiction to award the non-practice allowance and prosecutorial allowance as prayed for in the claim
  2. 2.Whether the respondents are officers under the Office of the Director of Public Prosecutions
  3. 3.Whether the trial court had jurisdiction to equate the job groups of the respondents
  4. 4.Whether the appellant discriminated against the respondents

Key legal issues

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01

Whether the appellant was bound by the Public Service Commission Human Resource Policy, 2016 and the circulars of June 11, 2010 and October 9, 2012

Holding

As a public body under section 3 of the Public Service Commission Act, 2017, the appellant was bound by the Commission's policy and the circulars, which applied to the entire public service legal subsector.

Reasoning

Section 3 of the Public Service Commission Act applies to all public bodies; NEMA did not claim exclusion. The circulars were issued by a Permanent Secretary whose authority was unchallenged, and the June 2010 circular was approved by the Permanent Public Service Remuneration Review Board, the SRC's predecessor, whose actions survived under sections 6 and 33 of the Sixth Schedule. Internal manuals must conform to Commission instruments.

p. 15
02

Whether the respondents were officers of the ODPP entitled to prosecutorial allowance

Holding

The respondents were appointed as public prosecutors by the DPP under section 85(1) of the Criminal Procedure Code, and differential treatment vis-à-vis other public prosecutors was unjustified.

Reasoning

The gazette notice appointing the 1st to 4th respondents was made pursuant to the DPP's statutory power, not under EMCA. The October 9, 2012 circular, issued on SRC recommendation, applied to lawyers in the public service legal subsector generally; the designation 'prosecutorial allowance' was not exclusive to ODPP officers. The SRC, through its predecessor, had tacitly acknowledged the review, so no further consultation was required.

p. 3
03

Whether the trial court could equate the respondents' job groups with public service grades

Holding

The finding on grade equivalency was a factual finding on uncontroverted evidence that the appellate court would not disturb.

Reasoning

Under section 10(7) of the Employment Act, the employer bears the burden where it fails to produce written particulars. NEMA tendered no contrary grading evidence or different rates; uncontroverted evidence stood as proof. The quantum awarded was factual, and per Jabane v Olenja, an appellate court interferes with findings of fact only on established principles.

p. 18
04

Whether the denial of the allowances amounted to discrimination and unfair labour practice

Holding

The denial constituted unequal treatment and unfair discrimination on arbitrary grounds, though not on any listed ground in article 27 or section 5 of the Employment Act.

Reasoning

The respondents proved unequal pay relative to public officers in similar positions for whom the circulars had been implemented. Following Louw v Golden Arrow Bus Services, denial of the allowances amounted to unfair discrimination founded on arbitrary or unreasonable grounds; per Ol Pejeta Ranching, they performed work of equal value. The appellant did not show its unique terms accounted for the allowances.

p. 10

Legal principles established

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  • Public bodies fall under the Public Service Commission Act and must align their human resource functions with the Commission's policies; internal documents cannot override Commission instruments.
  • Rights and obligations under circulars issued by a predecessor constitutional or governmental body subsist against its constitutional successor.
  • An employer that fails to produce written contracts or particulars bears the burden of proving or disproving an alleged term of employment under section 10(7) of the Employment Act.

Court orders

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  1. 1.Appeal dismissed in its entirety with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court, Nairobi
ELRC Cause No 547 of 2018
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (the judgment does not recite a specific constitutional/statutory hook)

Relief refused

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Setting aside of the trial court's declarations and monetary awards

The court, upon re-evaluation of the evidence, found the appeal lacked merit in its entirety

p. 18

Costs

Costs of the appeal awarded to the respondents; the trial court had directed the appellant to pay the costs of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we find no merit in this appeal which we hereby dismiss in its entirety with costs to the respondents
p. 18Disposition
Those shall be our orders.
p. 18Final orders
the internal documents generated by the appellant must comply with the documents made by the Commission and where there is inconsistency, the latter must prevail
p. 17Supremacy of Public Service Commission instruments
The appellate court only interferes with the trial court's findings of fact if it is shown that he took into account facts or factors which he should have not taken into account, or that he failed to take into account matters of which he should have taken into account, that he misapprehended the effect of the evidence or that he demonstrably acted on wrong principles in reaching the findings he did.
p. 18Appellate interference with findings of fact
having been appointed as public prosecutors, any treatment to the said respondents that was different from other public prosecutors was not justified
p. 3Equality of treatment for gazetted public prosecutors

Issues in the judgment

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minor

The judgment inconsistently cites the Supreme Court citation of Muthuuri as [2023] KESC 52(KLR) in one passage and [2023] KESC 56(KLR) in another

minor

The quotation of the October 9, 2012 circular states a commencement date of October 1, 2021 and a rate of '50,00', whereas the pleaded circular is effective October 1, 2012 at Kshs 50,000.00

minor

The case title is not expressly stated in the judgment; it is reconstructed from the gazetted prosecutors named in the judgment (Irene Kamunge, Erastus Gitonga, Cecilia Githaiga, Edward Wabwoto, Judith Kithinji, Edwin Ayiro)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Environment Management Authority v Wabwoto & 3 others; Law Society of Kenya & 2 others (Interested Parties) (Civil Appeal E276 of 2020) [2025] KECA 276 (KLR)", Case Analysis (2025). Civil Appeal (ELRC Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/276/eng@2025-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.