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ELRCPartially AllowedPetition No 122 of 2018· [2019] KEELRC 1665 (KLR)

Evans Muriuki Muthuri & 4 others v National Police Service Commission & 2 others [2019] KEELRC 1665 (KLR)

Employment and Labour Relations Court
17 May 2019
3,561 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that graduate police constables must be paid Inspector-level (Job Group J) salaries under an established legitimate expectation policy.

What this practically means

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Executive summary

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Five petitioners, four of them serving Police Constables in the Administration Police Service or Kenya Police Service holding university degrees, petitioned in November 2018 seeking declarations that denial of graduate constable pay (Job Group J, equivalent to an Inspector of Police) violated Articles 27, 28, 40, 41, 43 and 47 of the Constitution, plus mandamus directing payment and costs. The respondents, relying on the replying affidavits of George Kirigwi (NPSC) and Joseph Vincent Onyango (NPSC Secretary/CEO), contended that the 1995 Directorate of Personnel Management letter authorising University Graduate Constable pay had been overtaken by the National Police Service Act, the NPSC Regulations of 2015 and the Career Progression Guidelines of 2016, under which no graduate constable rank exists, and that any irregular emplacements were null and void. The Court examined payslips showing large, unexplained pay variances for officers designated Graduate Constables, long after the 2015 Regulations, and found arbitrary application of the pay job group, contravening Articles 47 and 41. The Court found the respondents had not denied the NPSC Chairperson's 19.03.2018 press statement confirming that special salaries for graduate constables were legally protected under prevailing policy, and held the petitioners had a legitimate expectation, applying the Halsbury's formulation adopted in Kalpana H. Rawal v JSC, to emplacement on Inspector-level pay and training towards promotion. Violations under Articles 27, 28, 40 and 43 were not established. Judgment was entered for the petitioners with declarations under Articles 41 and 47, mandamus to pay graduate constables Inspector-level pay per the 2018 policy, and costs for the first four petitioners. The TSC v KNUT authority relied on by the 1st respondent was distinguished.

Key legal issues

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01

Whether the 1995 letter and 2018 press statement constitute a binding policy on graduate constable pay

Holding

The press statement sets out the 1st respondent's prevailing policy on graduate constables, substantially similar to the 1995 letter, applying to all constables whether the degree was acquired before or after joining the Service; the petitioners are entitled to benefit from it

Reasoning

The respondents did not deny paragraph 32 of the supporting affidavit. The unchallenged press statement by the NPSC Chairperson confirmed payment of special salaries to graduate constables was legally protected and provided for in policy guidelines. The Court found the regulations and guidelines did not extinguish this policy, and that the policy stood on equal footing with the guidelines and regulations as promulgations of the same body.

p. 4
02

Whether the petitioners established a legitimate expectation

Holding

Yes - the petitioners established a legitimate expectation to emplacement on the Inspector of Police pay level (Job Group J) and to training towards substantive promotion to Inspector

Reasoning

Applying the Halsbury's definition of legitimate expectation as cited in Kalpana H. Rawal v JSC, the Court found an express, clear and unambiguous promise in the 1995 letter confirmed by the 2018 press statement; the expectation was reasonable; the 1st respondent was competent to make it; and the promise did not contravene any statute or the Constitution.

p. 4
03

Whether the emplacement practice violated constitutional provisions

Holding

Violations were established only under Articles 47 and 41(1) and (2)(a) and (b); Articles 27, 28, 40 and 43 violations were not established

Reasoning

The exhibited payslips showed large, unexplained variances in pay and designation among similarly situated officers, demonstrating arbitrary and unreasonable application of the graduate constable pay group long after the 2015 Regulations and 2016 Guidelines. However, no material established discrimination on Article 27(4) grounds or violations of Articles 28, 40 and 43.

p. 3
04

Whether the Teachers Service Commission v KNUT authority applied

Holding

It was misconceived for the 1st respondent to rely on that authority because this petition concerned application of an already approved pay level, not setting or determining salaries

Reasoning

The Court of Appeal in TSC v KNUT held the SRC advisory mandatory where new teachers' salaries had to be set or determined. Here the petition concerned the application of a pay level already approved and applied in the Service, so the authority was inapposite.

Legal principles established

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  • A policy or promise by a public authority, whether by letter or press statement, can ground a legitimate expectation entitling officers to a pay emplacement, protected on the basis of fairness, predictability and certainty
  • An unexplained, selective and arbitrary application of a pay emplacement policy violates Articles 41 (fair labour practices and fair remuneration) and 47 (fair administrative action)
  • No one can claim to benefit from an illegality merely because others have benefited from it

Court orders

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  1. 1.Declaration that the respondents' conduct amounts to denial, violation, infringement and/or threat to the fundamental rights of Graduate Constable Officers under Articles 41(1) and (2)(a) and (b), and 47 of the Constitution
  2. 2.Declaration that Graduate Police Officers on a salary scale below Job Group J and similarly qualified as Graduate Police Officers in Job Group J are entitled to be emplaced to pay scale of graduate constables equivalent to pay of an Inspector of Police Job Group J, per the 1st respondent's prevailing policy as clarified in the Chairperson's press release of 19.03.2018
  3. 3.Order of Mandamus directed at the 1st and 2nd respondents to pay all graduate constables salaries equivalent to pay of an Inspector of Police Job Group J per the prevailing policy as clarified in the press release of 19.03.2018
  4. 4.Respondents to pay costs of the petition for the 1st, 2nd, 3rd and 4th petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 246, 27, 27(4), 28, 40, 41, 41(1), 41(2)(a) and (b), 43, 47, 232
  • National Police Service ActFirst Schedule (ranks in the Service)
  • National Police Service Commission Act2011
  • National Police Service Commission (Recruitment and Appointment) Regulations2015
  • National Police Service Commission (Promotion) Regulations2015
  • National Police Service Career Progression Guidelines2016

Cases cited (2)

  • Kalpana H. Rawal –Versus- Judicial Service Commission & 4 Others
    [2015] eKLR
  • Teachers Service Commission- Versus- Kenya Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
Jurisdiction invoked
Articles 41, 47 and related fundamental rights provisions of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Evans Muriuki Muthuri & 4 others v National Police Service Commission & 2 others [2019] KEELRC 1665 (KLR)", Case Analysis (2019). Petition No 122 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1665/eng@2019-05-17

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