Benjamin v Attorney General & 2 others; Lemedeket (Petition as relating to the 1st to 51st interested parties having been determined by the ruling delivered by the Court on 27.04.2023) & 2 others (Interested Parties) (Petition E207 of 2022) [2023] KEELRC 1768 (KLR)
The bottom line
#Kenya's Employment Court struck down the National Police Service Commission's creation of a Principal Administrative Secretary post, confirming the Inspector-General as the police service's Accounting Officer.
What this practically means
#Executive summary
#Key legal issues
#Power to establish offices in the National Police Service
The National Police Service Commission lacked constitutional and statutory authority to create the office of Principal Administrative Secretary/Accounting Officer; offices are created by Parliament per the schedules to the National Police Service Act and may only be amended by the Cabinet Secretary on the Commission's advice by Gazette order
The court examined article 246(3), article 252(1)(c), the National Police Service Commission Act and the National Police Service Act. Neither vests in the Commission power to establish or abolish offices. Ranks are prescribed in the first and second schedules of the Act, amendable only by the Cabinet Secretary on the Commission's advice. The impugned office was therefore not lawfully in existence.
Authority to appoint an accounting officer
The Commission had no authority to appoint an accounting officer; its reliance on section 147(1) of the Public Finance Management Act was misconceived as that section concerns county assemblies
The court analysed sections 2(1), 67 and 68 of the Public Finance Management Act, which designate accounting officers for national government entities, and held the role is vested in the Inspector General of the National Police Service as assisted by the Deputy Inspectors General and the Director of Criminal Investigations. The Cabinet Secretary is to designate the Inspector General as accounting officer.
Identity of the accounting officer for the National Police Service
The accounting officer role is wholly vested in the Inspector General of the National Police Service, not the Principal Secretary responsible for police services
The petitioner argued the Principal Secretary should be the accounting officer. The court rejected this, holding that the National Police Service's operational independence under article 245(4) and the statutory scheme of the National Police Service Act vest administration and financial accountability in the Inspector General. Principal Secretaries are accounting officers only for state departments assigned to them.
Constitutionality of the appointment and prudent use of public resources
The establishment of the office and the appointment contravened constitutional values and principles in articles 10, 201, 232, 73 and 75, duplicated existing roles, and the remuneration and benefits were not based on any SRC advisory or determination
The court found the duties assigned to the office duplicated those of the Inspector General and his deputies, referred to a cadre of civilians inconsistent with the statutory composition of the Service, and the remuneration was not anchored on SRC determination as required by article 230(4), breaching the fiscal principles of article 201.
Legal principles established
#- Article 246(3) of the Constitution does not vest the National Police Service Commission with power to establish or abolish offices in the National Police Service; the provision presupposes existing offices
- No office shall exist in the National Police Service outside the ranks provided for in the first and second Schedule to the National Police Service Act
- The person responsible for administration of the National Police Service, and hence the accounting officer, is the Inspector General of the National Police Service
- The Inspector General of the National Police Service is the designated Accounting Officer of the Service by operation of the constitutional and statutory provisions
- Article 252(1)(c) conferring power on constitutional commissions to recruit their own staff does not confer a power to establish or abolish offices
Court orders
#- 1.Declaration that the purported press release and/or gazette notice and any document of the purported appointment of the 52nd interested party as Principal Administrative Secretary is unconstitutional, ultra vires, invalid, null and void ab initio
- 2.Order of judicial review by way of certiorari quashing the respondent's press release and/or Gazette Notice No 14712 (Vol CXXIV-No 256) and any document of the purported nomination/appointment
- 3.Order of judicial review by way of prohibition prohibiting the 52nd interested party from acting in any way or manner as Principal Administrative Secretary
- 4.Declaration that the skewed appointments/action in gazette notice No 14712(Vol CXXIV-No 256) is contrary to articles 1,2,3,10,27,54,55,56,73,75,201 and 232 of the Constitution
- 5.Declaration that the unprocedural establishment and/or assignments of the office/position of principal administrative secretary as accounting officer has no legal, statutory and constitutional underpinning and is hence unconstitutional, null and void
- 6.Declaration that the Inspector General of the National Police Service is the designated Accounting Officer of the National Police Service by operation of article 245 of the Constitution as read with the National Police Service Act and sections 2(1), 67 and 68 of the Public Finance Management Act, 2012
- 7.Declaration that the Inspector-General shall discharge the responsibilities of an Accounting Officer assisted by the Deputy Inspector General of Kenya Police Service, the Deputy Inspector General of the Administration Police Service, and the Director of the Criminal Investigations
- 8.Declaration that the National Police Service Commission shall exercise its constitutional and statutory powers only with respect to police officers whose offices are established per the Ranks in the First and Second Schedules to the National Police Service Act
- 9.Declaration that the National Police Service is required to formulate progressive entry qualifications and career progression policies to meet all its human resource needs within its ranked officers
- 10.Declaration that the National Police Service Commission may delegate to the Inspector-General, subject to the Constitution or written law, the power to promote or appoint police officers under the rank of sergeant per section 10 of the National Police Service Commission Act
- 11.Petitioner awarded costs of the petition payable by the 1st respondent, with other parties to bear their own costs
- Jurisdiction invoked
- Constitutional petition and judicial review jurisdiction (articles 10, 73, 75, 155, 201, 246, 258 invoked; prayers for certiorari and prohibition)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Benjamin v Lemedeket & 6 others (Petition E207 of 2022) [2025] KEELRC 2125 (KLR)[2025] KEELRC 2125 (KLR)17 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Benjamin v Attorney General & 2 others; Lemedeket (Petition as relating to the 1st to 51st interested parties having been determined by the ruling delivered by the Court on 27.04.2023) & 2 others (Interested Parties) (Petition E207 of 2022) [2023] KEELRC 1768 (KLR)", Case Analysis (2023). Petition No E207 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1768/eng@2023-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.