Priscilla Wangui Mukundi & 10 Others v Kenya Prisons Service, Commissioner General of Prisons & Attorney General; Public Service Commission (Interested Party)

tive Petitioners on account of salaries, including allowances, in arrea rs effective from 24 April 2023. c. A declaration that the 1st and 2nd Respondents and the Interested Pa rty’s neglect, refusal and/or failure to recognise and effect salaries, i ncluding allowances, due and payable to the Petitioners before or upon designation of the rank of Commissioner of Prisons from 10 Jun e 2024 based on Job Group P infringed their rights and fundamental freedoms guaranteed under Article 27, 28, 41(2)(a), and 47 (1) (2) o f the Constitution. d. A declaration that the Respondents' and Interested Party’s neglect o r failure to recognise and effect salaries, including allowances, due a nd payable to the Petitioners in accordance with the Salaries and Remuneration Commission 2022 Scale infringed their rights and fundamental freedoms guaranteed under Articles 27,28,41 (2)(a) and 47(1)(2) of the Constitution. e. A declaration that the Respondents and Interested Party’s neglect or failure to effect payment of salaries, including allowances, due and payable to the Petitioners based on Job Group P before or upon designation of the rank of Commissioner of Prisons from 10 June 202 4 constituted discrimination in employment. f. A declaration that the 1st and 2nd Respondents’ neglect or failure to g ive reasons for the rank, demotion of salaries, including allowances, due and payable to the Petitioners upon designation of the rank of C ommissioner of Prisons from 10 June 2024 constituted unreasonable and unfair administrative action in a manner contrary to the provisio ns of the Fair Administrative Action Act. g. A declaration that the applicable Scale for salaries, including allowan ces, due and payable to the Petitioners is the Salaries and Remuner ation Commission 2022 Scale based on Job Group P. h. An order of Certiorari to remove into this Court and to quash the dec ision of the 1st and 2nd Respondents and/or the Interested Party to de mote the Petitioners' rank below Commissioners of Prisons. ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 2

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i. An order of Prohibition to remove into this Court for purposes of pro hibiting the 1st and 2nd Respondents and the Interested Party, either by themselves, their agents or servants, from any manner reducing the Petitioners’ salaries and allowances below the rank of Commissi oners of Prisons and prohibiting reference of the Petitioners in any manner other than Commissioners of Prisons. j. An order of Mandamus to remove into this Court for purposes of dire cting the Respondents and the Interested Party to immediately reins tate the rank of the Petitioners to the rank of Commissioner of Priso ns and based on Job Group P pursuant to the Signal of 10 June 2024 with concomitant payment of salaries and allowances. k. An order of Mandamus directing the Respondents and the Interested Party to immediately effect payment of salaries and allowances due and payable, including but not limited to emergency call, extraneou s, health risk, and non-practising allowances, in accordance with the Salaries and Remuneration Commission 2022 Scale to the Petitioner s based on Job Group P. l. This Court to issue such further orders and give such directions as it may deem fit to meet the ends of justice and the protection of the C onstitution and in the context of the declarations made. m. The costs of the Petition be awarded to the Petitioners. The Petition The Petitioners’ case is that the 1st Respondent appointed them through the Interested Party vide letters of appointment dated 4 September 2023. They were employed as medical officers, pharmacists, and dental officers and, upon completing their training, were promoted to Assistant Commissioner of Prisons. Pursuant to a signal issued by the 2nd Respondent on 10 June 2024, their ranks were harmonised, and they were designated as Commissioners of Prisons, integrating the ranks of Deputy Commissioner of Prisons and Assistant Commissioner of Prisons. Following their new designation as Commissioners of Prisons, the Respondents ought to have synchronised their corresponding designation with their Job ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 3

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Group and remuneration. However, their payslips continued to reflect Job Group N, a lower rank, instead of the proper Job Group P; as a result, they received lower salaries and allowances. The Petition is that, despite the Petitioners' promotion to the rank of Assistant Commissioners of Prisons, the 1st and 2nd Respondents, through separate signals, arbitrarily demoted them to the rank of Inspectors of Prisons, amounting to an unlawful and unilateral demotion contrary to the signal of 10 June 2024. The Respondents have willfully neglected, failed, and refused to recognise their new rank and corresponding job group and to pay the salaries and allowances applicable to Commissioners of Prisons. As a consequence, they claim salary and allowance arrears amounting to Kshs. 26,433,000.00, allegedly accruing from 24 April, 2023. The petition is that unless the Court intervenes and directs the Respondents to recognise their rank and effect payment based on Job Group P, they will continue to suffer financial loss and irreparable detriment. The continued payment of salaries based on a lower job group amounts to an ongoing violation of their constitutional rights under Articles 10(2)(b), 27, 28, 29(f), 41, 43 and 47 of the Constitution and Sections 4, 6 and 7 of the Fair Administrative Action Act. The Petitioners allege discrimination in employment and remuneration, denial of fair administrative action, failure to give reasons for the impugned decisions, denial of an opportunity to be heard, arbitrary reduction of their salaries and allowances, unfair labour practices, and infringement of their right to fair remuneration and reasonable working conditions. In support of the petition, the petitioners filed a Supporting Affidavit of Priscilla Wangui Mukundi, who avers that the Petition raised substantive constitutional issues and was not merely an ordinary employment dispute. They relied on Articles 10, 27, 28, 29, 41, 43 and 47 of the Constitution, contending that the Respondents’ actions in reversing their ranks, ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 4

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reducing their remuneration and allowances, and selectively recognising the ranks of other officers amounted to discrimination, unfair labour practices and violations of their rights to dignity, fair remuneration and fair administrative action. Relying on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, they submitted that the Court had jurisdiction to determine constitutional questions arising in an employment and labour dispute and to grant appropriate employment and monetary remedies. The Petitioners submitted that they had made several attempts to resolve the dispute administratively. They had raised their concerns with the Respondents’ Human Resource Department and the Director of Health Services as early as December 2023, but the complaints were not resolved. As regards their appointment, the Petitioners disputed the Respondents’ contention that their appointment as Assistant Commissioners of Prisons was irregular, ultra vires or void. They relied on the Revised Scheme of Service for Prisons Uniformed Personnel. They submitted that the Scheme expressly permitted the direct appointment of holders of Bachelor of Medicine degrees to the rank of Assistant Commissioner of Prisons. They argued that Assistant Commissioner of Prisons was therefore the applicable entry rank for medical officers in the Kenya Prisons Service. The Respondents had improperly relied on the scheme applicable to doctors in the general public service, which did not govern them as uniformed prison officers. The alleged irregularity in their appointment was an afterthought, as it was never communicated to them and they were not issued letters formally revoking their appointments. They relied on Mathenge & 4 Others v Inspector General of Police & 3 Others [2022] KEELRC 4872 (KLR), among other authorities, to contend that an employer could not retrospectively divest employees of accrued rights through unilateral administrative action. ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 5

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The Petitioners submitted that they had a legitimate expectation to be remunerated as Assistant Commissioners of Prisons pursuant to their letters of appointment and, following the harmonisation of the ranks, as Commissioners of Prisons. They contended that the appointment letters constituted clear, express and unambiguous representations upon which they were entitled to rely. They further argued that the signal dated 10 June 2024 created a further legitimate expectation regarding their entitlement to the rank of Commissioner of Prisons and the corresponding salary and allowances. In Communications Authority of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR, they submitted that the representations made to them were lawful, clear and reasonable and that their legitimate expectations were consequently violated when the Respondents abruptly reversed their ranks and remuneration. The reversal of ranks from Assistant Commissioner of Prisons to Senior Superintendent of Prisons, and the consequent reduction in their salaries and allowances, amounted to an unlawful and procedurally unfair demotion. They argued that the decision was made without prior notice, written reasons, or an opportunity to be heard, contrary to Article 47 of the Constitution and the Fair Administrative Action Act. As public officers, Article 236(b) of the Constitution protected them from demotion without due process of law. They maintained that an adverse decision affecting their rank, status, salary, and terms of employment could not lawfully be taken without consultation, notice, and an opportunity to make representations. They also relied on the principle of sanctity of contract, submitting that their letters of appointment set out their contractual terms, including their designation and remuneration, which could not be unilaterally varied without lawful justification and fair procedure. The Petitioners submitted that they were selectively treated differently from medical officers recruited alongside them. They pointed to evidence showing that certain officers appointed at the same time had subsequently been designated Commissioners of Prisons following the ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 6

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harmonisation of ranks, while the Petitioners alone had their ranks reversed and were excluded from the upgrade. They argued that neither the Respondents nor the Interested Party had demonstrated any additional criteria applicable to them or provided written reasons for their exclusion. They contended that the differential treatment violated Article 27 of the Constitution and amounted to an unfair labour practice. In Union of Kenya Civil Servants v Attorney General & 2 Others; Public Service Commission & 10 Others, Petition E026 of 2025, the Court found discriminatory treatment where officers were excluded from promotion without evidence of a lawful and transparent assessment process. They were entitled to regular payment of the salaries and allowances stipulated in their letters of appointment and the applicable Collective Bargaining Agreement. The Respondents’ failure to pay the allowances regularly, including payment based on an outdated CBA and payment in arrears, violated their right to fair remuneration under Article 41 of the Constitution. In particular, the Risk Allowance was withheld despite their continued exposure to health risks arising from their interaction with inmates in the course of their duties. The explanation that the payment system had not been automated could not justify the continued non-payment, especially when their counterparts in the wider public service and other uniformed departments continued to receive the relevant allowances. In Professor Francis Mathooko v Machakos University, Kenya Union of Pre-Primary Education Teachers v Salaries and Remuneration Commission & 4 Others [2025] and Mwangi v Attorney General & 2 Others [2024], the court held that withholding or irregularly paying contractual allowances constituted a violation of fair remuneration, legitimate expectation and, in the circumstances, the right to equality. Under Articles 28, 29 and 43 of the Constitution, the demotion, reduction of remuneration and failure to pay their allowances adversely affected the petitioners’ dignity and subjected them to degrading treatment. The ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 7

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inability to receive the remuneration and allowances attaching to their rank placed them in financial difficulty and embarrassment. It was inconsistent with their right to the highest attainable standard of economic and social well-being. Responses In response, the Respondents opposed the Petition by filing Grounds of Opposition dated 13 June 2025. The Respondents contend that the Petition does not raise any justiciable constitutional question, but concerns ordinary employment and human resource matters that ought to be addressed through the applicable statutory and administrative mechanisms. The Petitioners have not demonstrated any violation of their constitutional rights that would warrant invoking Articles 22 or 258 of the Constitution, contrary to the principles set out in Anarita Karimi Njeru v Republic [1979] and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. The response is that the Petition offends the doctrine of exhaustion of administrative remedies under Article 159(2) (c) of the Constitution and Section 9 of the Fair Administrative Action Act, as the Petitioners did not exhaust the available internal dispute resolution mechanisms or pursue the applicable statutory avenues, including any appeal to the Salaries and Remuneration Commission. The reliefs sought concern employment benefits and monetary compensation principally and cannot properly be granted through a constitutional petition without first establishing liability under the applicable employment law framework. On the alleged constitutional violations, the Respondents deny any breach of Articles 27, 29, 41, 43 and 47 of the Constitution. The Petitioners have not demonstrated discrimination, unfair labour practice, unlawful administrative action or any legitimate expectation to a particular rank, designation or salary. The restructuring and harmonisation of ranks within the Kenya Prisons Service was undertaken lawfully and reasonably ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 8

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pursuant to the 1st Respondent’s administrative mandate. No legitimate expectation exists to a specific rank, designation, or salary. The Respondents urge the Court to find that the Petition fails to meet the threshold for constitutional litigation and should dismiss it with costs. The Respondents submitted that the 2014 Revised Scheme of Service for Uniformed Personnel is the applicable framework governing Medical Officers in the Kenya Prisons Service. Under the Scheme, Medical Officers enter the service as Senior Superintendent of Prisons, and the Scheme provides no provision for entry at the rank of Assistant Commissioner. Reliance on the 2016 Ministry of Health Scheme of Service was misplaced, as that Scheme applies to employees of the Ministry of Health, not uniformed officers in the Prisons Service. The 2019 circular merely collapsed ranks for structural purposes and did not amend the entry requirements or create a new grade. Consequently, an administrative circular could not override the applicable Scheme of Service. The Respondents submitted that adherence to the prescribed Scheme was necessary to preserve uniformity, command structure and orderly career progression within the uniformed Service. On the alleged demotion, the Respondents submitted that placing the Petitioners at the rank of Senior Superintendent was an administrative regularisation of an erroneous appointment, not a disciplinary reduction in rank. Public bodies have a duty to correct unlawful administrative decisions, even where such correction may cause hardship. Since the Petitioners’ initial placement as Assistant Commissioners was contrary to the applicable Scheme, they could not acquire a legitimate expectation to retain an unlawful benefit. The harmonisation letter dated 5 June 2024 applied only to substantive holders of the ranks of Assistant Commissioner and Deputy Commissioner. It could not be extended to the Petitioners, who had never lawfully held those ranks substantively. The Petitioners had not lost their accrued ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 9

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benefits or years of service and continued to have a clear career progression within the medical cadre. On the alleged violation of Articles 27, 41 and 47 of the Constitution, the Respondents submitted that the Petitioners had not demonstrated discrimination, since the same 2014 Scheme governs all medical officers in the Kenya Prisons Service. The right to fair labour practices does not require a public employer to perpetuate an administrative error contrary to the governing legal framework. The correction of the Petitioners’ designation was therefore neither disciplinary nor punitive, but an administrative measure intended to align their employment with the applicable Scheme of Service. The Petitioners met the requirements of Article 47 of the Constitution through written communications explaining the reasons for the regularisation. They nevertheless acknowledged that procedural fairness requires affected persons to be heard and contended that the Petitioners had not been denied engagement, having participated in the court-annexed mediation process. On the claim for arrears and allowances, the Respondents submitted that delays in payment of the Health Risk Allowance, Non-Practicing Allowance and designation within the IPPD were systemic administrative challenges affecting the medical cadre generally and were not targeted at the Petitioners. They stated that efforts were underway to resolve the payroll anomalies, including commencement of manual payments pending development of the relevant IPPD codes. However, the Petitioners cannot claim salary arrears calculated on the Assistant Commissioner grade because that designation had been erroneously assigned and subsequently regularised. Any entitlement to arrears was limited to remuneration applicable to the Senior Superintendent of Prisons grade from 24 April 2023, together with the corresponding lawful allowances. The respondents submitted that the Petition is premature for failure to exhaust the statutory dispute-resolution mechanism under section 74 of the Public Service Commission Act and Regulation 77 of the Public Service Commission Regulations, 2020. The petitioners have failed to establish ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 10

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any constitutional violation or lawful entitlement to the rank of Assistant Commissioner or Commissioner of Prisons. The Respondents seek that the Court dismiss the Petition with costs, declare the regularisation to Senior Superintendent of Prisons lawful, affirm the applicability of the 2014 Revised Scheme of Service, and reject the claim for arrears based on the Assistant Commissioner grade. Interested Party’s Response In response, the interested party filed the Replying Affidavit of Paul Famba, who avers that the Petitioners were recruited into the Kenya Prisons Service through delegated authority and that their recruitment into the Service was not in dispute. They were issued appointment letters dated 4 September 2023 appointing them as Assistant Commissioners of Prisons on probation. However, the appointments were erroneously and unprocedurally issued without the requisite approval of the Public Service Commission (PSC) and were therefore ultra vires and void ab initio. Famba avers that, after discovering the anomaly, the Kenya Prisons Service took corrective measures to align the Petitioners’ ranks with the applicable Scheme of Service, under which Medical Officers were designated to Job Group M, equivalent to Superintendent of Prisons. The Petitioners were subsequently upgraded to Job Group N, corresponding to Senior Superintendent of Prisons, following a recommendation by the Prisons Human Resource Management Advisory Committee and approval by the Commissioner General of Prisons. Famba for the Interested Party avers that an enhancement of the Petitioners’ career progression was above the baseline grade applicable to Medical Officers. The PSC’s communication of 5 June 2024 harmonising ranks in the Kenya Prisons Service was intended to align the Service with the National Police Service. It merged the ranks of Deputy Commissioner and Assistant Commissioner of Prisons into the rank of Commissioner of Prisons, PG 10. The Petitioners were not entitled to benefit from that harmonisation because their initial appointment to the rank of Assistant ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 11

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Commissioner of Prisons had been procedurally irregular. Consequently, their subsequent placement as Senior Superintendents of Prisons did not amount to a demotion but constituted favourable treatment and an upgrade from the grade prescribed for Medical Officers. Famba avers that promotion within the public service is subject to the applicable career progression guidelines and Schemes of Service, including prescribed qualifications and experience, availability of vacancies, merit and ability, approval by the Commission and availability of funds. The Petitioners had served for less than two years, whereas advancement to Senior Superintendent ordinarily required at least three years' service as Superintendent of Prisons. The Petitioners had already received favourable treatment and could not claim entitlement to the much higher rank of Commissioner of Prisons, a senior managerial position requiring substantial experience. On legitimate expectation, the Interested Party submitted that the Petitioners could not legitimately expect to retain or benefit from an appointment that was contrary to the applicable law and Scheme of Service. Relying on Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, it maintained that a legitimate expectation must be founded on a clear, unambiguous and lawful representation and cannot arise contrary to express provisions of the law or Constitution. Additionally, the Interested Party raised a preliminary objection that the Petitioners had not exhausted internal remedies, as they had not lodged any complaint or appeal with the PSC before approaching the Court. It relied on Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR on the requirement to exhaust available internal dispute-resolution mechanisms. The Interested Party submitted that the Petition does not raise a constitutional dispute warranting the Court's intervention. The Petitioners ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 12

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failed to demonstrate with precision the constitutional rights allegedly violated or threatened and did not adduce evidence establishing the alleged violations. The Petition is speculative, misconceived, incompetent, fatally defective, frivolous, vexatious, and an abuse of the Court process, and the Interested Party urged the Court to dismiss it with costs. The Interested Party submitted that the Petitioners had improperly elevated an ordinary employment dispute into a constitutional petition. It argued that Articles 41 and 47 of the Constitution are given effect through specific labour and employment statutes, and that parties should not bypass those statutory mechanisms by invoking the Constitution directly where no independent constitutional violation has been demonstrated. Relying on, inter alia, Josephat Ndirangu v Henkel Chemicals (EA) Ltd, Francis Atonya Ayeka v Kenya Police Service & Another, the interested party urged the Court to find that the Petition did not raise a constitutional question and was therefore incompetent. As public servants, the Petitioners were subject to the Constitution, the Public Service Commission Act, the Public Service Commission Regulations, 2020, and the applicable Human Resource Policies and Procedures Manual. Aggrieved by the correction of their designation, the Petitioners ought first to have invoked Regulation 77 of the Public Service Commission Regulations, 2020, which provides an avenue for the Commission to investigate and determine complaints. The Interested Party maintained that the Petition was therefore premature. The Interested Party relied on Aviation and Allied Workers Union v Kenya Airways Ltd, Diana Kethi Kilonzo & Another v IEBC & 10 Others, and Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others for the principle that internal and statutory disputeresolution mechanisms should ordinarily be exhausted before the Court’s jurisdiction is invoked. On grading and promotion, the PSC submitted that its circular dated 5 June 2024 merely harmonised the Prisons Department's grading structure ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 13

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with that of the National Police Service and National Youth Service and did not automatically promote or upgrade officers. Promotion remained subject to the applicable career progression guidelines and the prescribed qualifications and requirements. The Petitioners were currently serving as Senior Superintendents of Prisons in Job Group N. They had received favourable treatment, since advancement to that grade ordinarily required at least three years’ service as Superintendent of Prisons, whereas they had served for less than two years. The Commission further emphasised that promotion is subject to merit, qualifications, experience, availability of vacancies, performance, approval by the Commission and availability of funds. In KEFRI & Another v Stephen Muriithi, Civil Appeal No. 2 of 2019, the court held that a Scheme of Service must be implemented strictly in accordance with its terms and that an employee could not be placed in a higher grade without satisfying the prescribed requirements. The position of Commissioner of Prisons was a senior managerial position and not a common-cadre position to which officers were automatically entitled by reason of harmonisation. The Petitioners had not demonstrated that vacancies existed, that they had been appraised and found suitable, that they had served the requisite period in their current grade, or that funds had been made available for such promotion. On alleged discriminatory treatment, the Petitioners have not established differential treatment. The Interested Party challenged the authenticity and admissibility of two documents relied upon by the Petitioners, observing that the documents had been produced with material identifying information redacted and without an explanation of how they had been obtained. The Interested Party submitted that the documents were obtained through undisclosed or irregular means and ought to be excluded under Article 50(4) of the Constitution. No legitimate expectation could arise from an erroneous or unlawful promotion. It was argued that accepting the Petitioners’ position would prevent the employer from correcting administrative mistakes and would permit them to continue ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 14

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benefiting from an irregular placement inconsistent with their qualifications and the applicable legal framework. Determination From the pleadings, evidence, and written submissions, the issues that emerge for determination are: (i) Whether the respondents have violated the constitutional rights of the petitioners through demotion, non-payment of salary and allowances arrears, and placement as Commissioners of Prisons. (ii) Whether the respondents and the interested party have discriminated against the petitioners. (iii) Whether the orders of certiorari, prohibition and mandamus sought should be issued. The petitioners were employed by the 1st respondent, Kenya Prisons Service, on 4 September 2023. The interested party, the Public Service Commission, issued the letters of appointment as mandated under Article 234 of the Constitution read together with the Public Service Commission Act. The Interested Party is the constitutional commission responsible for the public service. The petitioners' case is that, through a signal dated 10 June 2024, the 1st respondent harmonised ranks for parity with the National Police Service and established the rank of Commissioner of Prisons – CP (PG 10), which integrated the ranks of Deputy Commissioner of Prisons and Assistant Commissioner of Prisons. The petitioners thus assert that their designation became Commissioner of Prisons and, as such, their salary and benefits should have reflected the same, but the respondent failed to harmonise or make the necessary payment. That the pay slips reflected that they were in Job Group N, which affected their pay scale contrary to their legitimate expectation. The petitioners are correct that, through letters dated 4 September 2023, the 1st respondent appointed them as officers in charge of their respective ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 15

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station sites, in concurrence with the interested party. However, the assertion that through a signal from the 2 nd respondent dated 10 June 2024, the 1st respondent harmonised the ranks, appointing them as Commissioners of Prisons with the concurrence of the Interested Party, is not backed by any written approval. The signal filed with the petition relates to different matters addressed on 25 February 2025, well after the alleged 10 June 2024 date. Indeed, under section 10(3) of the Employment Act, best practice for reviewing employment terms and conditions is to obtain the employer's written approval and the employee's acceptance. The Interested Party's approval, advice, and concurrence regarding recruitment and the review of terms and conditions of service or employment in any public service, including the appointment of the petitioners, are constitutional and mandatory. Any revision of terms, harmonisation, and placement or promotion must be with the Interested Party's written approval. Similarly, the Scheme(s) of Service in the public service must be approved by the Interested Party or through the Interested Party's written delegated authority. In Consumer Federation of Kenya (COFEK) v National Social Security Fund Board of Trustees & 2 others [2022] eklr and Enos Namasaka & 9 others v Kenya Medical Supplies Authority & Others, Petition No. E149 of 2023 (Nairobi), the courts have emphasised that the constitutional mandate to address terms and conditions of service for public officers and all those in the public service vests in the Interested Party under Article 234 of the Constitution. Therefore, although the petitioners relied on the 2014 Revised Scheme of Service for Uniformed Personnel as the applicable framework governing Medical Officers in the Kenya Prisons Service, it cannot confer a promotion or escalation to the next rank without the Interested Party's written approval and sanction. The circular dated 5 June 2024, analysed, shows that the Interested Party harmonised the grading structure of the Prisons ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 16

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Department with that of the National Police Service and National Youth Service and did not amount to an automatic promotion or upgrading of officers, including the petitioners as medical doctors. The career progression guidelines and prescribed qualifications and requirements must be seen within the framework of harmonising the grading structure within the Prisons Department. The petitioner cannot thus claim what is legally not due. The foundation must be sought from the Interested Party's mandate to secure the terms and conditions of service within the public service. Without the Interested Party's written approval for any promotions or changes to the terms and conditions of service for the petitioners as public officers, any other office undertaking such mandate is unconstitutional. No rights or benefits can accrue from an illegality. On the claim for declaration that the petitioners' rights under the Constitution were violated, as analysed above, no rights accrue from an illegality. The claim, based on the alleged application of the circular dated 5 June 2024 to seek benefits of the nature of a promotion, is unfounded. Additionally, the claim for payment of Ksh. 26,433,000 is not disaggregated. It is not particularised to each petitioner as required under Rule 23 of the Employment and Labour Relations Court (Procedure) Rules. A general claim of this nature cannot suffice. On the claim for constitutional rights violations and discriminatory treatment against the petitioners, the claim is premised on rights not accrued as Commissioner of Police, as alleged; the comparator thereof cannot apply. The basis is also the CBA in place, where the Petitioners submitted that they were selectively treated differently from medical officers recruited alongside them. However, the petitioners filed payment statements which do not reflect unionisation or any active CBA at the shop floor to enjoy agency fees. There is no foundation for such assertion, ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 17

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as held in Kenya Plantation and Agricultural Workers Union v Rea Vipingo Limited & another [2026] KEELRC 1591 (KLR). To apply any CBA at the shop floor, the basic terms and conditions of employment must be demonstrated, which are missing in this case. However, where legitimate salary arrears are due and owing, the respondents should assess and pay accordingly. These are dues which should not necessitate the filing of a constitutional petition. Parties in an employment relationship should resolve such matters without prejudice to the petitioners: these salary arrears and benefits. Where due, they should be in respect of the petitioners’ position under the letter of appointment or the position confirmed and approved by the interested party. Accordingly, the orders sought cannot be issued as framed. The Court finds the petition without merit and hereby dismissed. As the employment relationship subsists, each party shall bear its costs. Delivered in open court this 30th day of September 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… and …………………………………..…… … ELRC NAIROBI JUDGMENT PETITION NO. E094 OF 2025 18

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