Shadrack Mutia Muiu v National Police Service Commission & 2 others [2020] KEELRC 758 (KLR)
The bottom line
#Kenya's Employment Court ruled that a commissioner's salary cannot be stopped under civil service rules unless he is constitutionally removed from office, awarding the officer Kshs. 35.1 million.
What this practically means
#Executive summary
#Key legal issues
#Whether stoppage of a commissioner's salary under the Code of Regulations was lawful
The Code of Regulations applies to civil servants, not State Officers in independent commissions; its application to stop the salary was unlawful and violated Article 236(b) and Article 250(8)
The court found the Code of Regulations applies only to civil servants deployed in Ministries/Departments. The petitioner, as a State Officer in an independent commission under Article 260, could not have his salary stopped under it. His remuneration was protected by Article 250(8), and the Constitution contemplated only removal under Article 251 as action against a commissioner.
Whether the petitioner remained entitled to salary absent removal from office
Since the petitioner was never removed under Article 251, he served his full term and was entitled to his full salary and benefits
A petition for removal was presented to Parliament which recommended the appointment of a tribunal, but the President never constituted one. The petitioner was never served with the relevant letters nor assessed by a Medical Board. The court held the appointing authority waived the right to remove him, so he remained in office entitled to remuneration from the Consolidated Fund.
Whether the constitutional violations were properly pleaded
The petition fell short of the constitutional petition threshold and the court declined to entertain the alleged Article 27 and 41 violations
Relying on the Supreme Court decision in Mumo Matemu, the court held that although the petition identified relevant constitutional provisions, it did not plead with particularity the alleged violations and the manner of breach. The discrimination claim also failed for want of evidence comparing remuneration.
Legal principles established
#- Remuneration and benefits of members of a commission cannot be varied to their disadvantage during their term of office
- Any act or omission in contravention of the Constitution is invalid
- A public officer shall not be subjected to disciplinary action without due process of law
Court orders
#- 1.An order of certiorari quashing the 1st respondent's decision to withhold and/or stop the petitioner's salary and benefits
- 2.An order of mandamus compelling the respondents to pay the petitioner Kshs. 35,145,000 being salary withheld from 1.3.2014 to 2.10.2018
- 3.The sum awarded is subject to statutory deductions
- 4.Costs of the petition to the petitioner plus interest at court rates from the date of filing the suit
- Jurisdiction invoked
- Constitutional petition under Articles 27, 41, 236 and 250(8) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shadrack Mutia Muiu v National Police Service Commission & 2 others [2020] KEELRC 758 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/758/eng@2020-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.