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Court of AppealPartially AllowedNairobi Civil Appeal No. E146 of 2021· [2025] KECA 816 (KLR)

The Hon Attorney General & 1 other v Dr Major (rtd) Shadrack Mutia Muiu & 1 other

Court of Appeal of Kenya
9 May 2025
5,680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that disputes over a constitutional commissioner's salary belong in the High Court, not the Employment Court.

What this practically means

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Executive summary

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The 1st respondent was appointed a Commissioner of the National Police Service Commission in October 2012 for a six-year term. He suffered a stroke in February 2013 while on a benchmarking tour abroad and never reported back to work. By a letter of 10th February 2014 addressed to the Principal Secretary, Treasury, the Commission caused his salary, allowances and medical cover to be stopped from March 2014. The trial court found the stoppage unlawful and unconstitutional, quashed it by certiorari, and ordered payment of Kshs. 35,145,000 as withheld salary, but declined damages for discrimination owing to inadequate pleadings. The appellants appealed, arguing the stoppage was lawful and the award excessive, and contending in the alternative that the ELRC lacked jurisdiction since the 1st respondent's terms were constitutionally grounded. The Court of Appeal allowed the appeal on jurisdiction alone. Relying on its decision in the Okiya Omtata case and the Kakamega County Government appeal, it held that disputes concerning the appointment, remuneration and removal of members of independent constitutional commissions are constitutional questions for the High Court, not employment disputes within section 12 of the ELRC Act. The court found the trial court's reasoning internally inconsistent - having held that the Employment Act did not apply, the ELRC Act's jurisdictional provision could not apply either. It set aside the judgment of 2nd July 2020 and substituted an order striking out the petition, expressly declining to determine the merits so as not to prejudice any fresh proceedings in the High Court. As the jurisdictional issue was never raised below, each party was directed to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELRC over disputes involving constitutional office holders

Holding

The ELRC had no jurisdiction because the 1st respondent was a State Officer in an independent commission whose appointment, remuneration and removal are governed by Articles 250 and 251 of the Constitution; the dispute was a constitutional question for the High Court.

Reasoning

Following its own decision in the Okiya Omtata case and the Kakamega County Government appeal, the court held that appointment and removal of members of independent commissions are sui generis constitutional processes, not labour disputes. The remuneration of a commissioner is protected by Article 250(8) and removal only through Article 251; such matters fall outside section 12 of the ELRC Act even where they touch on salary.

p. 9
02

Internal inconsistency in the trial court's reasoning on jurisdiction

Holding

The trial court's reasoning was self-defeating: having found the contract grounded on the Constitution and section 30 of the Employment Act inapplicable, it necessarily followed that section 12(1)(a) of the ELRC Act, which grants jurisdiction, was also inapplicable.

Reasoning

The court reasoned that if the contractual terms were purely constitutional and the Employment Act did not apply, the jurisdictional foundation of the ELRC Act could not simultaneously apply. This logical inconsistency vitiated the trial court's assumption of jurisdiction.

p. 8
03

Appropriate forum for enforcement of rights of constitutional office holders

Holding

Enforcement of the 1st respondent's rights under Article 250(8) of the Constitution lies before the High Court under Articles 22, 23 and 165, as pronounced by the Supreme Court in County Assemblies Forum.

Reasoning

Associating itself with the Supreme Court's pronouncement, the court held that enforcement of rights and fundamental freedoms, even touching on employment and labour, is within the competence of the High Court. The fact that a dispute touches employment does not confer ELRC jurisdiction where the underlying complaint is constitutional.

p. 10
04

Duty of a first appellate court

Holding

A first appellate court must analyse and re-assess the evidence and reach its own conclusions, while making allowance for not having seen or heard the witnesses.

Reasoning

The court restated the classic principles in Selle v Associated Motor Boat Co and Alfarus Muli on interference with trial court findings, framing its approach before resolving the jurisdictional question, which it found dispositive.

p. 6

Legal principles established

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  • Disputes concerning the appointment, remuneration and removal of members of constitutional commissions and independent offices, whose terms are underpinned by the Constitution, are not employment and labour relations disputes within section 12 of the ELRC Act; they are constitutional questions for the High Court and the ELRC has no jurisdiction over them.
  • The ELRC has no original or unlimited jurisdiction to interpret and apply the Constitution; it may do so only in matters arising within employment and labour relations disputes properly before it.
  • Where a court finds it lacked jurisdiction, it should not proceed to decide the merits so as not to prejudice future litigation in the competent forum.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the Employment and Labour Relations Court made on 2nd July 2020 in Nairobi ELRC Petition No. 115 of 2018 set aside
  3. 3.Substitution of an order striking out the petition
  4. 4.Each party to bear own costs
On appeal from
Employment and Labour Relations Court, Nairobi
Petition No. 115 of 2018
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction; jurisdiction of the trial court considered under section 12 of the Employment and Labour Relations Court Act and Articles 162(2), 165, 23, 250 and 251 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "The Hon Attorney General & 1 other v Dr Major (rtd) Shadrack Mutia Muiu & 1 other", Case Analysis (2025). Nairobi Civil Appeal No. E146 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/816/eng@2025-05-09

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