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Supreme CourtDismissedPetition 15 (E022) of 2021

Muthuuri & 4 others v Attorney General & 2 others

Supreme Court of Kenya
23 June 2023
Mohammed Khadhar IbrahimM.K. IbrahimSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
9,528 words in judgment
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·~38 min to read original · ~4 min brief

The bottom line

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Police constables cannot claim higher pay based on old policies that conflict with current law.

What this practically means

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Police constables who earned degrees while serving argued they should get higher pay based on old government circulars from 1969 and 1995. The Supreme Court said no. Those old policies were replaced by the 2010 Constitution and new laws. Now, any pay changes for police must involve the Salaries and Remuneration Commission. Also, the constables couldn't use other officers' pay slips as evidence without permission. So their appeal was dismissed.

Executive summary

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This was an appeal from the Court of Appeal to the Supreme Court under Article 163(4)(a) of the Constitution. The appellants, police constables who had acquired university degrees while in service, sought to enforce a claim that they were entitled to be placed in Job Group J (Inspector-level salary) based on a 1969 circular and a 1995 letter that had historically granted higher pay to graduate constables. The Employment and Labour Relations Court had allowed their petition, finding a legitimate expectation and ordering mandamus. The Court of Appeal reversed that decision, holding that the old policy documents had been overtaken by the 2010 Constitution and subsequent legislation, and that the Salaries and Remuneration Commission (SRC) must be involved in any salary changes. The Supreme Court dismissed the appeal, affirming the Court of Appeal. The Court held that the 1969 circular and 1995 letter could not form the basis of a legitimate expectation after the promulgation of the Constitution and the enactment of the National Police Service Act and regulations. The Court further held that the National Police Service Commission can only determine remuneration with the mandatory advice of the SRC, and that ordering payment without such advice would usurp the SRC's constitutional mandate. The Court also ruled that pay slips belonging to third parties, which the appellants relied on to prove discrimination, were inadmissible as evidence because they were not properly authenticated and the owners did not consent to their use. The appeal was dismissed with no order as to costs, and the security for costs was ordered refunded.

Questions the Court framed

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

  1. 1.Whether the appeal before this court meets the constitutional threshold under article 163(4)(a) of the Constitution.
  2. 2.Whether the Court of Appeal erred in finding that the appellants did not have any 'legitimate expectation'.
  3. 3.Whether the Court of Appeal erred in finding that the opinion of SRC was obligatory in the circumstances of this dispute.
  4. 4.Who bears the costs?

Key legal issues

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01

Whether the appellants had a legitimate expectation to be placed in Job Group J upon acquiring degree certificates.

Holding

The appellants did not have a legitimate expectation because the 1969 circular and 1995 letter were overtaken by the 2010 Constitution and subsequent legislation, and the 2018 press release did not create an automatic entitlement.

Reasoning

The court found that at the time the appellants obtained their degrees (2015-2017), the applicable law was the Constitution, the National Police Service Act, and the 2015/2016 regulations. The old policy documents could not form the basis of a legitimate expectation. The press release merely restated the procedure for promotion, which required more than just presenting a degree certificate. Additionally, the pay slips relied on to show differential treatment were inadmissible as they belonged to third parties without proper authentication.

p. 4
02

Whether the opinion of the Salaries and Remuneration Commission (SRC) was obligatory before the respondents could upgrade the appellants' salaries.

Holding

The advice of the SRC is mandatory and must be obtained before the National Police Service Commission can determine or review any remuneration or benefits for police officers.

Reasoning

The court interpreted Article 230(4) of the Constitution and section 10(1)(b) of the National Police Service Commission Act, which require the NPSC to act 'with the advice of the Salaries and Remuneration Commission.' This advice is binding under Article 259(11). The SRC's role is not limited to setting new salaries but extends to reviewing existing ones. Ordering the respondents to pay Job Group J salaries without SRC involvement would usurp the SRC's constitutional mandate.

p. 21
03

Whether the pay slips produced by the appellants were admissible as evidence.

Holding

The pay slips were inadmissible because they belonged to third parties who were not parties to the proceedings, did not consent to their use, and the documents were not properly authenticated.

Reasoning

The court applied the principle from Njonjo Mue v IEBC that documents belonging to third parties must be obtained with the owner's consent and the source explained. The pay slips contained sensitive personal information, and using them without proper authority could violate privacy and data protection laws. Without this evidence, the appellants could not prove differential treatment or discrimination.

p. 19

Legal principles established

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  • A claim of legitimate expectation cannot be founded on a policy document overtaken by subsequent constitutional and statutory provisions.
  • The National Police Service Commission can only determine remuneration with the mandatory advice of the Salaries and Remuneration Commission.
  • Third-party documents like pay slips are inadmissible unless the owner consents and the source is explained.
  • The advice of the Salaries and Remuneration Commission is binding under Article 259(11) of the Constitution.
  • A press release restating promotion procedure does not create an automatic entitlement to higher pay.

Court orders

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  1. 1.The petition dated October 28, 2021 is hereby dismissed.
  2. 2.Parties to bear their own costs.
  3. 3.The sum of Kshs 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the appellants.

The bench

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

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority

Wrote the judgment

On appeal from
Court of Appeal of Kenya
Civil Appeal No. 313 of 2018
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Declaration that the respondents' conduct amounted to violation of fundamental rights under articles 27, 28, 40, 41, 43 and 47 of the Constitution.

The appellants failed to prove discrimination or violation of rights.

p. 23

Declaration that graduate police officers on salary below Job Group J have been unfairly discriminated against.

No evidence of differential treatment was properly adduced.

p. 19

Order of mandamus directing payment of Job Group J salaries to all graduate constables.

The order would usurp the role of the Salaries and Remuneration Commission.

p. 23

Costs

Parties to bear their own costs.

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.

in the hierarchy of laws, no policy paper or letter can override written law
p. 17 Legitimate expectation and hierarchy of laws
the 2nd respondent can determine the appropriate remuneration and benefits for the National Police Service only with the advice of the SRC
p. 21 Mandatory role of the Salaries and Remuneration Commission
Documents belonging to third parties must flow freely from them to whoever wishes to use them in court
p. 19 Admissibility of third-party documents
The petition dated October 28, 2021 is hereby dismissed.
p. 23 Final orders
Parties to bear their own costs.
p. 6 Costs order

Key timeline

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1969
Circular issued granting higher pay to graduate constables
1995
Letter reaffirming the policy on graduate constable pay
2010
Constitution of Kenya promulgated, establishing new legal framework
2015-2017
Appellants acquire university degrees while in service
2021-10-28
Petition filed at Supreme Court
2023
Supreme Court delivers judgment dismissing appeal

Practical implications

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For lawyers

Key lessons for employment lawyers

This case clarifies that legitimate expectation cannot override clear statutory provisions. Lawyers should advise clients that old policy documents are unenforceable if superseded by later laws. Also, when using third-party documents like pay slips, ensure proper authentication and consent to avoid inadmissibility. The mandatory role of SRC in police remuneration is reinforced.

For businesses

Implications for employers on policy promises

Employers cannot rely on outdated policies to create binding expectations if new laws have changed. Any promises of benefits must align with current statutory requirements. If a regulatory body has mandate over remuneration, its advice must be sought before implementing changes. This case highlights the importance of reviewing policies regularly.

For individuals

What this means for police officers

Police officers who earn degrees cannot automatically expect a pay upgrade based on old circulars. Promotions and salary changes now require following proper procedures and involvement of the Salaries Commission. If you want to use colleagues' pay slips as evidence, you need their consent and proper authentication. Always check current laws.

Frequently asked questions

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Can Kenyan police officers get higher pay for having a university degree?+

Not automatically. The Supreme Court ruled that old policies allowing higher pay for graduate constables were replaced by the 2010 Constitution. Now, any pay changes require advice from the Salaries and Remuneration Commission and must follow proper promotion procedures.

What is legitimate expectation in Kenyan employment law?+

Legitimate expectation means an employee can expect a benefit based on a promise or consistent practice. However, this case shows that such expectation cannot override written law. If a policy is overtaken by new laws, it cannot be enforced in court.

Are third-party pay slips admissible as evidence in Kenyan courts?+

Pay slips belonging to other people are not automatically admissible. The owner must consent to their use, and the source must be explained. Using them without proper authentication can violate privacy and data protection laws.

What is the role of the Salaries and Remuneration Commission in Kenya?+

The SRC advises on salaries for public officers. For police, the National Police Service Commission must get SRC's advice before determining or reviewing pay. This advice is mandatory and binding under the Constitution.

Later judgments citing this (12)

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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, "Muthuuri & 4 others v Attorney General & 2 others", Case Analysis (2023). Petition 15 (E022) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/52/eng@2023-06-23

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