High Court 6879 of 2026

(Suing on their own behalf and on behalf of all the forty-seven County Assembly Speakers) AND THE SALARIES AND REMUNERATION COMMISSION ………………. 1ST RESPONDENT THE ATTORNEY GENERAL ………………………………………………………2ND RESPONDENT JUDGMENT INTRODUCTION 1. The Court is called upon to determine a Constitutional Petition dated 19 th December 2024, in which the Petitioners being the Speakers of various County Assemblies and purporting to represent all forty-seven County Assembly Speakers impugn the constitutionality of Gazette Notice No. 8795 dated 27th July 2022 and Gazette Notice No. 10350 dated 9 th August 2023, both issued by the 1st Respondent, the Salaries and Remuneration Commission. 2. The Petition is anchored on the contention that the impugned differentiation offends Article 27 of the Constitution, which guarantees equality and freedom from discrimination, and is further inconsistent with the national values and principles of governance enshrined under Article 10. It is additionally contended that the impugned framework was promulgated absent adequate and meaningful public participation, contrary to the dictates of Articles 10 and 201 of the Constitution. The Petitioners further invoke the doctrine of legitimate expectation, asserting that they had a reasonable and enforceable expectation that the motor vehicle car grant previously enjoyed HCCHRPETMISCE058/2024 JDT Page 2 | 34

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under the preceding remuneration cycle would either be retained or enhanced. 3. The 1st Respondent opposes the Petition in its entirety, as set out in the Replying Affidavit sworn on 3rd March 2025 by its then Acting Commission Secretary and Chief Executive Officer, Margaret Njoka. It is the 1 st Respondent’s position that it acted strictly within the confines of its constitutional and statutory mandate as prescribed under Article 230(4) and (5) of the Constitution and the Salaries and Remuneration Commission Act, 2011. It avers that the impugned remuneration framework was formulated pursuant to structured remuneration review cycles spanning the period 2021/2022 to 2024/2025, and that the process was preceded by extensive and meaningful public participation. 4. The 1st Respondent contends, in summary, that the impugned differentiation in transport benefits is founded on objective and rational criteria reflective of the distinct constitutional roles of the respective office holders, particularly the station-based functions of Speakers as contrasted with the mobility demands of Members of County Assemblies under Articles 177 and 185 of the Constitution. It further maintains that remuneration frameworks cannot be predicated on expired electoral cycles and were, in any event, developed in compliance with the constitutional requirements of meaningful public participation. 5. The 2nd Respondent, the Honourable Attorney General, opposes the Petition, contending in essence that no violation of the Constitution has been HCCHRPETMISCE058/2024 JDT Page 3 | 34

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demonstrated in the exercise of the 1 st Respondent’s mandate. It is maintained that the differentiation in transport benefits is constitutionally permissible, being grounded in objective and rational criteria tied to the distinct functions of county assembly office holders, and justified by considerations of fiscal sustainability and job evaluation. The 2 nd Respondent further asserts that the Petition raises no justiciable constitutional issues, but rather invites the Court to interfere with policy and administrative determinations within the 1st Respondent’s remit, urging judicial restraint in the absence of illegality, irrationality, or procedural impropriety. 6. Against this backdrop, the Court is called upon to determine, inter alia, the constitutionality of the impugned Gazette Notices under Article 27 of the Constitution; the adequacy of the process of public participation leading to their promulgation; the existence and scope of any legitimate expectation in favour of the Petitioners; and the availability of the reliefs of certiorari and mandamus within the constitutional and judicial review framework. THE PETITIONERS’ CASE 7. The Petitioners’ case is that they have moved this Court by way of a Constitutional Petition and a contemporaneous Notice of Motion challenging the constitutionality and legality of the remuneration framework promulgated by the 1st Respondent as contained in Gazette Notice No. 8795 of 27th July 2022 and Gazette Notice No. 10350 of 9th August 2023. The Petition is supported by the affidavit of Hon. Josiah M. Thiriku sworn on 31 st October 2024. HCCHRPETMISCE058/2024 JDT Page 4 | 34

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8. The gravamen of the Petitioners’ claim is that, in the exercise of its mandate under Article 230 of the Constitution, the 1 st Respondent had previously established a remuneration regime grounded on parity and equality of treatment between Speakers and Members of County Assemblies. This position, they contend, was reflected in the review communicated in February 2021, which converted a car loan facility into a transport facilitation benefit in the form of a car grant applicable to both categories of office holders. However, that parity was, in their view, fundamentally disrupted by the impugned Gazette Notices, which introduced a differentiated framework allocating to Speakers an official motor vehicle, while extending to Deputy Speakers and Members of County Assemblies monetary benefits in the form of motor vehicle reimbursement, maintenance allowance, mileage claims, and access to car loan facilities. 9. The Petitioners aver that the said differentiation was not only introduced but subsequently entrenched without adherence to the constitutional imperatives of public participation and stakeholder engagement. They contend that no meaningful consultation was undertaken with them, notwithstanding their direct and substantial interest in the subject matter, thereby rendering the impugned process constitutionally infirm. 10. It is further their case that the impugned framework gives rise to an unjustified and irrational disparity in benefits. In particular, they assert that whereas Deputy Speakers and Members of County Assemblies derive direct pecuniary and proprietary benefits, including ownership and unrestricted use of motor vehicles, Speakers are confined to the use of official motor vehicles HCCHRPETMISCE058/2024 JDT Page 5 | 34

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that remain institutional assets, are subject to restrictive conditions, and do not constitute a comparable personal benefit. They contend that this distinction is neither reasonable nor justifiable in light of their constitutional status and functions. 11. The Petitioners also contend that the operational limitations attached to the official motor vehicle undermine the independence, authority, and institutional dignity of the office of the Speaker as contemplated under Article 178 of the Constitution. In their view, the 1 st Respondent failed to properly take into account the constitutional stature of the office and thereby acted in a manner inconsistent with the principles set out under Article 230(5) of the Constitution, including fairness, transparency, and the principle of equal remuneration for work of equal value. 12. Additionally, the Petitioners anchor their claim on the doctrine of legitimate expectation, asserting that, having previously enjoyed a higher car grant relative to other Members of County Assemblies, they had a reasonable expectation that any subsequent review would not diminish their benefits or subject them to adverse differential treatment without due process. They contend that the impugned framework derogated from this expectation without affording them an opportunity to be heard. 13. The Petitioners further aver that efforts to seek administrative redress from the 1st Respondent were unsuccessful, thereby necessitating recourse to this Court. HCCHRPETMISCE058/2024 JDT Page 6 | 34

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14. On the basis of the foregoing, the Petitioners assert that the impugned Gazette Notices are unconstitutional for violating, inter alia, the principles of equality, non-discrimination, transparency, and public participation. Consequently, they seek the following reliefs; a) A DECLARATION that the Gazette Notice No. 8795 of 27th July 2022 and Gazette Notice No. 10350 of 9th August 2023 are unfair and discriminatory contrary to the provisions of Article 27 of the Constitution. b) An Order of CERTIORARI to remove to the High Court and quash the Gazette Notice No. 8795 of 27th July 2022 and Gazette Notice No. 10350 of 9th August 2023 to the extent that it provides a differential and discriminatory treatment for the official transport benefit for the Speakers of the County Assemblies, the Deputy Speakers and the Members of the County Assemblies. c) An order of MANDAMUS compelling and directing the 1 st Respondent to publish a new Gazette Notice providing for; i) Motor Vehicle Reimbursement in the sum of Kshs. 5,000,000.00 for the purchase of a car of engine capacity not exceeding 3,000cc for official duties by the Speakers of the County Assemblies to be payable once in a County Assembly term. HCCHRPETMISCE058/2024 JDT Page 7 | 34

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ii) Car Maintenance Allowance to be paid to the Speakers of the County Assemblies at the rate of Kshs, 200,000.00 per month. iii) Mileage Claim to be reimbursed to the Speakers of the County Assemblies a claimable mileage allowance at the applicable rate using a car engine capacity not exceeding 3,000cc. d) Order (c) above to take effect from 9 th August 2023 being the date of the publication of Gazette Notice No. 10350 of 9th August 2023. e) A structural interdict do issue under Article 23(3) of the Constitution to compel the 1st Respondent to publish a new Gazette Notice in compliance with prayer (c) above within fourteen (14) days of the delivery of the judgment. f) Costs of the Petition. THE RESPONDENTS’ CASE 1ST RESPONDENT’S CASE 15. The 1st Respondent’s case, as discerned from its Grounds of Opposition, Replying Affidavit, and written submissions, is that the impugned remuneration framework was formulated in strict conformity with its constitutional and statutory mandate, and that the present Petition is devoid of legal merit. HCCHRPETMISCE058/2024 JDT Page 8 | 34

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16. It is the 1st Respondent’s position that it is an independent constitutional commission established under Article 230 of the Constitution, vested with the exclusive mandate to set and periodically review the remuneration and benefits of State officers. In discharging this mandate, it is guided by the constitutional principles of fiscal sustainability, transparency, accountability, fairness, and the imperative of equal remuneration for work of equal value. The 1st Respondent avers that remuneration reviews are undertaken within structured four-year cycles aligned to electoral terms, and that each electoral cycle gives rise to a distinct legal framework, with the consequence that benefits applicable in a preceding cycle lapse and cannot be carried forward as of right. 17. The 1st Respondent further explains that, within the relevant review cycle, it lawfully reviewed and set transport benefits through the impugned Gazette Notices of July 2022 and August 2023. In so doing, it aligned the transport facilitation of County Assembly Speakers with that of Speakers at the national level, determining that Speakers would be accorded official transport in the form of a government vehicle with driver and maintenance, while Members of County Assemblies and Deputy Speakers would receive motor vehicle reimbursement, maintenance allowance, and mileage claims. This differentiation, it contends, is informed by the distinct functional roles of the respective offices, noting that Members of County Assemblies and Deputy Speakers discharge extensive representational duties necessitating mobility HCCHRPETMISCE058/2024 JDT Page 9 | 34

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within wards, whereas Speakers perform predominantly institutional and station-based functions. 18. The 1st Respondent rejects the allegation that the impugned framework is discriminatory, contending that differential treatment does not ipso facto amount to unconstitutional discrimination. In this regard, reliance is placed on Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR, for the proposition that discrimination only arises where differential treatment lacks objective and reasonable justification. Further reliance is placed on Deepak Sibal v Punjab University AIR 1969 SC 903, which affirms that reasonable classification is permissible where it is founded on an intelligible differentia bearing a rational nexus to the object sought to be achieved, as well as National Coalition for Gay and Lesbian Equality v Minister for Justice, for the principle that equality does not connote uniformity of treatment. Applying these principles, the 1 st Respondent maintains that the impugned differentiation is rational, proportionate, and anchored in legitimate public objectives, including fiscal prudence and harmonisation across the two levels of government. 19. On the question of public participation, the 1st Respondent asserts that it undertook extensive and meaningful stakeholder engagement prior to the promulgation of the impugned framework. It avers that the process included public notices, consultations with County Assemblies and other stakeholders, and the receipt and consideration of memoranda. In support of this position, reliance is placed on Doctors for Life International v Speaker of the National Assembly and Others (CCT12/05), which underscores the centrality of public HCCHRPETMISCE058/2024 JDT Page 10 | 34

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participation in ensuring accountable and rational decision-making, British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others [2019] eKLR, where the Supreme Court articulated the qualitative and quantitative thresholds of public participation and Mui Coal Basin Local Community & 17 others v Permanent Secretary Ministry of Energy & 15 others [2015] eKLR, for the proposition that public participation does not require the involvement of every individual but must demonstrate inclusivity and a deliberate effort to engage affected stakeholders. It is its further contention that the Petitioners, through their representative structures, participated in the process and are thereby estopped from alleging exclusion. 20. With respect to the doctrine of legitimate expectation, the 1 st Respondent contends that no such expectation can arise in the circumstances of this case. It avers that the prior car grant benefit was expressly confined to a specific remuneration cycle, and that the Petitioners assumed office under a new cycle with full knowledge of the prevailing remuneration framework. In this regard, reliance is placed on County Government of Kakamega & 2 Others v Salaries and Remuneration Commission; County Government of Mombasa (Interested Party) [2018] KEHC 9880 (KLR), for the holding that public officers cannot anchor remuneration claims on benefits applicable to a previous electoral term. 21. On the reliefs sought, the 1st Respondent submits that the threshold for the grant of judicial review remedies has not been met, as no illegality, irrationality, or procedural impropriety has been demonstrated. Reliance is HCCHRPETMISCE058/2024 JDT Page 11 | 34

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placed on Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR on the scope of the orders of certiorari and mandamus, and Pharmaceutical Manufacturers Association of SA: In re Ex Parte President of the Republic of South Africa (2000), for the principle that courts ought not to interfere with lawful and rational decisions merely on the basis that they would have reached a different conclusion. It is further contended that the orders sought, particularly mandamus compelling the setting of specific remuneration benefits, would amount to an impermissible intrusion into its constitutionally assigned mandate, contrary to the doctrine of separation of powers, as affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Benjamin v Gitiri & 4 others [2025] KEHC 17026 (KLR), which caution against judicial overreach into functions reserved for constitutional bodies. 22. The 1st Respondent additionally posits that the grant of the reliefs sought would occasion duplication of benefits, distort the coherent structure of public sector remuneration, and impose an unsustainable burden on the public wage bill, in contravention of Article 201(d) of the Constitution. It emphasises that remuneration setting is an inherently polycentric function entrusted to a specialised constitutional body, and that unwarranted judicial intervention would undermine both constitutional design and fiscal discipline. 23. It is the 1st Respondent’s case that it acted lawfully, rationally, and in full compliance with constitutional requirements, including the obligation to HCCHRPETMISCE058/2024 JDT Page 12 | 34

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facilitate public participation. It contends that the Petition is imprecise, unsubstantiated, and discloses no justiciable cause of action, and accordingly urges the Court to dismiss it with costs. . 2ND RESPONDENT’S CASE 24. The 2nd Respondent, the Honourable Attorney-General, equally opposes the Petition in its entirety, contending that it is devoid of merit, misconceived in law, and fails to disclose any justiciable constitutional controversy warranting the intervention of this Court. 25. At the core of the 2nd Respondent’s case is the contention that the Petitioners have failed to discharge the requisite evidentiary and legal burden of demonstrating any violation of Articles 201 and 230(5) of the Constitution in the exercise of the mandate of the Salaries and Remuneration Commission. It is maintained that the impugned remuneration framework was lawfully promulgated in accordance with constitutional imperatives, including fiscal sustainability, transparency, and equity in public compensation, and cannot be impugned in the absence of proof of illegality, irrationality, or arbitrariness. 26. The 2nd Respondent further contends that the Petition is predicated upon a fundamental misapprehension of the constitutional architecture governing County Assemblies, particularly the distinction between elected Members of County Assemblies and ex officio office holders such as Speakers and Clerks. Reliance is placed on Articles 177 and 185 of the Constitution to underscore HCCHRPETMISCE058/2024 JDT Page 13 | 34

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that Members of County Assemblies discharge substantive legislative, oversight, and representational functions that necessitate mobility within their respective wards, thereby justifying the provision of motor vehicle reimbursement and mileage facilitation. In contrast, Speakers and Clerks, as ex officio members, perform predominantly institutional and administrative roles that do not attract comparable transport facilitation. On that basis, the differentiation in benefits is said to be rational, objective, and constitutionally permissible. 27. The 2nd Respondent rejects the allegation of discrimination under Article 27, submitting that the impugned differentiation constitutes a lawful classification grounded in functional distinctions and broader governmental policy. In this regard, reliance is placed on Council of County Governors v Salaries and Remuneration Commission [2024] KEHC 9248, where the Court affirmed that differentiation is permissible where it is based on objective criteria such as fiscal sustainability and role differentiation, and does not offend the equality clause where it bears a rational nexus to a legitimate governmental objective. It is further contended that the Constitution guarantees equality among similarly situated persons and does not demand uniformity of treatment across distinct categories of office holders. 28. The 2nd Respondent also invokes the principle that not all differential treatment amounts to discrimination, maintaining that the Petitioners have failed to demonstrate that the impugned distinctions lack objective justification. It is asserted that the provision of official motor vehicles to Speakers, as institutional heads, and transport reimbursements to Members HCCHRPETMISCE058/2024 JDT Page 14 | 34

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of County Assemblies for field-based duties, reflects a coherent and rational policy framework aligned with the functional realities of the respective offices. 29. On the question of fiscal discipline and the mandate of the Salaries and Remuneration Commission, the 2nd Respondent places reliance on County Assembly of Embu v Salaries and Remuneration Commission [2025] KEELRC 2393 (KLR), wherein the Court affirmed that the Commission bears a constitutional obligation to ensure the sustainability of the public wage bill and is empowered to eliminate forms of double compensation. The Court emphasised that overlapping benefits would undermine fiscal prudence. It is further submitted that the Commission retains exclusive authority to determine remuneration through technical job evaluation processes, and that courts ought not to interfere with such determinations absent proof of illegality or mala fides. 30. The 2nd Respondent further underscores that the differentiation in transport benefits is consistent with prior judicial pronouncements, including Council of County Governors v Salaries and Remuneration Commission (2018), where the Court reiterated that differential treatment is permissible where it is grounded on objective distinctions. It is contended that the ex officio status of Speakers and Clerks, coupled with their predominantly administrative roles, constitutes a valid and rational basis for the impugned differentiation. 31. Additionally, the 2nd Respondent submits that the Petition improperly invites the Court to interrogate matters that are fundamentally administrative and HCCHRPETMISCE058/2024 JDT Page 15 | 34

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policy-driven, rather than constitutional in character. It is argued that the issues raised pertain to internal administrative arrangements and facilitation within County Assemblies, falling squarely within the mandate of the 1 st Respondent. In this regard, reliance is again placed on Council of County Governors v Salaries and Remuneration Commission (supra), for the caution that courts ought to refrain from substituting their judgment for that of constitutionally mandated bodies acting within their lawful remit. 32. The 2nd Respondent maintains that the impugned decisions of the Salaries and Remuneration Commission were lawful, rational, and consistent with constitutional dictates that the differentiation in transport benefits is justified by objective and functional considerations; and that no violation of constitutional rights or principles has been established. Accordingly, the Court is urged to dismiss the Petition for want of merit, with a further proposal, in view of the public interest nature of the proceedings, that each party bears its own costs. ANALYSIS AND DETERMINATION 33. Having carefully considered the pleadings, affidavits, submissions, and authorities cited by the parties, the Court discerns that the Petition herein principally turns on four interrelated constitutional questions, namely; i. Whether the impugned Gazette Notices No. 8795 of 27th July 2022 and No. 10350 of 9th August 2023 are inconsistent with Article 27 of the Constitution on equality and freedom from discrimination HCCHRPETMISCE058/2024 JDT Page 16 | 34

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ii. Whether the process leading to the promulgation of the impugned Gazette Notices met the constitutional and statutory threshold of public participation as required under Articles 10 and 201 of the Constitution iii. Whether the Petitioners have established the existence and scope of any legitimate expectation arising from the previous remuneration framework iv. Whether the reliefs of certiorari and mandamus are available in the circumstances of this case within the constitutional and judicial review framework v. Whether the Court ought to interfere with the impugned remuneration framework having regard to the constitutional mandate of the 1st Respondent and the doctrine of separation of powers. 34. At the heart of this dispute lies the Petitioners’ grievance that the impugned transport facilitation framework introduces an unjustified differentiation between Speakers of County Assemblies, Deputy Speakers, and Members of County Assemblies. It is contended that this differentiation offends the constitutional guarantees of equality and non-discrimination under Article 27 of the Constitution. The Petitioners further assert that they were entitled to continued enjoyment or enhancement of a prior car grant, and that the restructuring thereof was undertaken without meaningful public participation and in breach of legitimate expectation. 35. The Respondents, on the other hand, defend the impugned measures as lawful exercises of a constitutional mandate under Article 230 of the Constitution, undertaken within structured remuneration review cycles and HCCHRPETMISCE058/2024 JDT Page 17 | 34

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guided by the principles of fiscal sustainability, transparency, accountability, and equity. They maintain that the differentiation in transport benefits is grounded on objective functional distinctions between constitutional offices and does not amount to discrimination. They further assert that public participation was duly undertaken and that no enforceable legitimate expectation can arise from a benefit expressly tied to a previous electoral cycle. 36. The Court now addresses the issues arising for determination. Whether the Impugned Gazette Notices Violate Article 27 of the Constitution 37. The Petitioners’ central complaint under this limb is that the impugned Gazette Notices unlawfully discriminate against Speakers of County Assemblies by subjecting them to a less favourable transport facilitation framework compared to Deputy Speakers and Members of County Assemblies. They contend that the earlier remuneration framework had established parity through a uniform car grant, and that the subsequent departure therefrom by providing official motor vehicles to Speakers while granting monetary reimbursements and allowances to Members constitutes unequal and unjustified treatment of persons performing comparable public functions. 38. The Respondents, in rebuttal, maintain that the impugned differentiation is neither arbitrary nor constitutionally impermissible. They assert that the offices in question are not similarly situated, and that the variation in benefits HCCHRPETMISCE058/2024 JDT Page 18 | 34

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reflects objective and verifiable functional distinctions, Members of County Assemblies perform extensive representational, oversight, and legislative duties requiring constant mobility across wards, whereas Speakers discharge predominantly institutional, supervisory, and procedural functions that are largely station-based. 39. It is necessary, at the outset, to restate the governing constitutional framework. Article 27 of the Constitution guarantees equality before the law and equal protection and equal benefit of the law. However, it is now firmly settled in constitutional adjudication that equality does not demand identical treatment in all circumstances. Rather, it is a substantive constitutional value aimed at preventing arbitrary distinctions, while permitting differentiation that is grounded in objective justification and rational policy considerations. 40. The Court of Appeal in Jacqueline Okeyo Manani & 5 others v Attorney General & another [2018] eKLR clarified that discrimination arises where persons in comparable circumstances are subjected to differential treatment without objective and reasonable justification. It is not every instance of differential treatment that amounts to discrimination, what offends Article 27 is differentiation that is arbitrary, irrational, or without lawful justification. 41. Embedded within this inquiry is the principle of proportionality, which operates as an evaluative standard in determining whether a differentiation, though founded on a legitimate objective, nonetheless imposes an excessive or unjustifiable burden on the affected class. HCCHRPETMISCE058/2024 JDT Page 19 | 34

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42. In De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, the Privy Council articulated the proportionality inquiry as requiring that any measure which limits or differentiates treatment in respect of rights must pursue a legitimate aim, be rationally connected to that aim, and impair the right or interest in question no more than is necessary to achieve the stated objective. This structured inquiry has since been widely adopted in comparative constitutional jurisprudence as a principled method of evaluating the justification for state action affecting rights. 43. The proportionality analysis has, in subsequent jurisprudence, been further enriched by the requirement that a court must ultimately assess whether the measure strikes a fair balance between the competing interests of the individual and those of the public. This broader evaluative dimension has been recognised in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26 and Huang v Secretary of State for the Home Department [2007] UKHL 11, where proportionality was affirmed as a structured yet holistic assessment of justification, necessity, and balance. 44. Proportionality in constitutional adjudication therefore operates not as a mechanical inquiry into rationality or necessity, but as a structured judicial assessment of whether a differentiation or limitation, even where grounded in a legitimate objective, remains justified when weighed against its practical impact on those affected and the constitutional values at stake. HCCHRPETMISCE058/2024 JDT Page 20 | 34

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45. Similarly, in South African constitutional jurisprudence, particularly in Harksen v Lane NO 1998 (1) SA 300 (CC), the enquiry into unfair discrimination incorporates a structured evaluation of justification, requiring courts to assess the impact of differentiation in light of its purpose, context, and effect. 46. Even where a rational basis for differentiation is established, the Court must still interrogate whether the resulting disparity is proportionate to the legitimate objective pursued. A differentiation that is rational in design may nonetheless fall short of constitutional standards if it is excessive, unjustifiable, or disproportionate in its effects. 47. In the present case, the functional distinction between the offices is clear and constitutionally grounded. Members of County Assemblies are elected under Articles 177 and 185 to discharge legislative, oversight, and representational functions at the ward level, duties which necessarily entail continuous mobility across diverse geographic areas. Speakers, by contrast, are ex officio office holders whose core mandate is institutional, procedural, and supervisory, anchored primarily within the precincts of the County Assembly. 48. This distinction is not incidental, it is structurally embedded in the constitutional design of county governance. It follows that transport facilitation tailored to mobility-intensive offices will, by necessity, differ from that applicable to predominantly station-based offices. HCCHRPETMISCE058/2024 JDT Page 21 | 34

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49. It is on this basis that the Respondents introduced a differentiated framework. Provision of official vehicles to Speakers to facilitate institutional mobility and dignified discharge of office, and monetary reimbursement, mileage claims, and allowances to Members of County Assemblies to support their field-based representational functions. 50. This approach finds support in Council of County Governors v Salaries and Remuneration Commission [2024] KEHC 9248, where the Court affirmed that differentiation in remuneration structures is constitutionally permissible where it is grounded in objective criteria such as role differentiation, fiscal sustainability, and institutional design. The Court further emphasized that Article 27 does not require uniformity of treatment across distinct constitutional offices, but rather prohibits arbitrary distinctions lacking rational foundation. 51. The Court is also guided by the broader constitutional principle that equality is concerned with parity among equals, not mechanical uniformity across fundamentally different offices. To insist upon identical benefits for constitutionally distinct roles would be to disregard functional realities expressly contemplated by the Constitution and to improperly substitute judicial preference for institutional policy. 52. It must further be borne in mind that remuneration and benefits within the public service are not static entitlements, but policy instruments subject to periodic review under Article 230 of the Constitution. In exercising this mandate, the 1st Respondent is constitutionally enjoined to ensure that HCCHRPETMISCE058/2024 JDT Page 22 | 34

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remuneration frameworks remain fair, fiscally sustainable, and aligned with the principles of responsible public finance under Article 201. 53. Viewed against this legal and factual matrix, the Court is not persuaded that the Petitioners have demonstrated any arbitrariness, irrationality, or lack of objective justification in the impugned differentiation. On the contrary, the record discloses a coherent policy choice grounded in functional necessity, constitutional design, and fiscal prudence. 54. Accordingly, the Court finds that the impugned Gazette Notices do not violate Article 27 of the Constitution. The Petitioners’ claim of discrimination therefore fails. Whether the Requirement of Public Participation was Met 55. Public participation is a cardinal constitutional principle under Article 10 and is reinforced in public finance matters under Article 201 of the Constitution. It is not a procedural ornament but a substantive constitutional imperative. 56. The Supreme Court in Doctors for Life International v Speaker of the National Assembly (CCT12/05) held that public participation is a vital requirement of democratic governance, designed to ensure accountability and legitimacy. In British American Tobacco Kenya PLC v Cabinet Secretary for Health [2019] eKLR, the Supreme Court further clarified that public participation must be meaningful, real, and reasonable, though not necessarily exhaustive or universal. HCCHRPETMISCE058/2024 JDT Page 23 | 34

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57. The Court is also guided by Mui Coal Basin Local Community & 17 others v Permanent Secretary Ministry of Energy & 15 others [2015] eKLR, where it was held that public participation does not require that every individual be heard, what is required is a reasonable opportunity for stakeholders, particularly those directly affected, to participate. 58. In the present case, the evidence demonstrates that the 1 st Respondent undertook a structured consultation process involving public notices, stakeholder engagements with County Assemblies, and receipt of memoranda through representative bodies. 59. Importantly, the Petitioners have not demonstrated that they were wholly excluded from the process. On the contrary, the record indicates engagement through institutional and representative mechanisms consistent with the nature of the decision being made. 60. Public participation is not a veto power, nor does it require unanimity or concurrence of all affected parties. It is a constitutional safeguard for inclusion, not a mechanism for control of decision-making by stakeholders. 61. The Court is therefore satisfied that the constitutional threshold of meaningful public participation was met. Whether a Legitimate Expectation Arose in Favour of the Petitioners 62. The doctrine of legitimate expectation arises where a public authority, by way of a clear, unambiguous and unqualified representation whether express, HCCHRPETMISCE058/2024 JDT Page 24 | 34

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implied, or arising from a consistent past practice induces in an individual or a defined class a reasonable expectation that it will act in a particular manner. 63. The expectation must, however, be one that is lawful, reasonable, and consistent with the statutory or constitutional framework governing the decision-maker. 64. The origins of the doctrine in modern administrative law are traceable to Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, where Lord Denning MR recognised that even in the absence of an enforceable legal right, procedural fairness may be required where an administrative decision adversely affects an individual’s interest or expectation. The Court thereby introduced the principle that fairness may, in appropriate circumstances, require that a person affected by administrative action be afforded an opportunity to be heard. 65. The doctrine was subsequently crystallised in Council of Civil Service Unions v Minister for the Civil Service (GCHQ) [1985] AC 374, where it was held that a legitimate expectation may arise from an express promise, established practice, or conduct of a public authority, provided that such expectation is not inconsistent with statute or public policy. 66. The contours of the doctrine were further refined in Union of India v Hindustan Development Corporation (1993) 3 SCC 499, where the Supreme Court of India held that the expectation must be founded upon a clear, HCCHRPETMISCE058/2024 JDT Page 25 | 34

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unambiguous and unqualified representation, and not upon vague assurances, general policy statements, or fluctuating administrative practice. 67. The doctrine has also developed a substantive dimension in comparative jurisprudence. In Food Corporation of India v Kamdhenu Cattle Feed Industries (1993) 1 SCC 71, the Court held that departure from a legitimate expectation without justification may render a decision arbitrary. Nevertheless, even in its expanded form, the doctrine remains inherently qualified and subordinate to overriding public interest considerations. 68. Similarly, in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17, the Privy Council reaffirmed that even where a legitimate expectation is established, it may lawfully be displaced by an overriding public interest, particularly where policy considerations, fiscal constraints, or governance imperatives necessitate a change of course. 69. In Kenyan jurisprudence, the doctrine has been applied with consistent circumspection and within clearly delineated confines. In Keroche Industries Limited v Kenya Revenue Authority & 5 Others, the Court emphasised that a legitimate expectation must arise from a lawful, certain, and unequivocal representation, and cannot be founded on ambiguity, administrative discretion, or policy subject to lawful change. Likewise, in County Government of Kakamega & 2 others v Salaries and Remuneration Commission [2018] eKLR, the Court affirmed the constitutional mandate of the SRC to set and periodically review remuneration, underscoring that such determinations operate within structured review cycles and are not HCCHRPETMISCE058/2024 JDT Page 26 | 34

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immutable entitlements capable of crystallising into vested rights across successive cycles. 70. Against this jurisprudential backdrop, it is necessary to consider the constitutional architecture governing remuneration. Article 230(4)(a) of the Constitution vests the Salaries and Remuneration Commission (SRC) with the mandate to set and regularly review the remuneration and benefits of State officers. This mandate is deliberate and structural. It reflects the constitutional recognition that public remuneration is not static, but a dynamic policy instrument that must respond to fiscal realities, equity considerations, and the principles of public finance set out under Article 201 of the Constitution. 71. The SRC therefore does not administer vested private-law entitlements. Rather, it formulates and periodically reviews remuneration frameworks within constitutionally defined parameters. The requirement of periodic review is itself a constitutional signal that remuneration structures are inherently revisitable and subject to adjustment in accordance with objective criteria such as fiscal sustainability, transparency, equity, and productivity. 72. Properly understood, therefore, remuneration frameworks operate within structured review cycles. However, it would be conceptually inaccurate to characterise this as a rigid doctrine of “expiry of electoral cycle benefits.” The constitutional design instead contemplates periodic reassessment of remuneration structures, with the consequence that benefits under a HCCHRPETMISCE058/2024 JDT Page 27 | 34

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previous framework do not automatically crystallise into permanent or irrevocable entitlements insulated from lawful review. 73. In the present case, the evidence demonstrates that the impugned car grant benefit was expressly tied to a defined remuneration cycle. It was part of a structured, time-bound policy framework subject to review under the constitutional mandate of the SRC. At no point was there a clear, unambiguous, and unconditional representation that the benefit would subsist in perpetuity or remain immutable across successive review cycles. 74. On the established test in GCHQ and Hindustan Development Corporation, the Petitioners have not demonstrated the existence of a precise, unequivocal and lawful representation capable of founding a legitimate expectation enforceable in law. What emerges, at best, is an expectation of policy continuity, not a binding assurance. 75. Even assuming, arguendo, that some expectation arose, such expectation cannot operate to fetter the SRC’s constitutional mandate under Article 230. It is trite that legitimate expectation cannot be invoked to restrain a public authority from performing a statutory or constitutional duty, nor can it be used to perpetuate an otherwise lawful policy beyond its review cycle. 76. This position is fortified by United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17, where it was held that legitimate expectation may be displaced by overriding public interest considerations, particularly in matters of public finance and regulatory governance. The HCCHRPETMISCE058/2024 JDT Page 28 | 34

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present dispute, which concerns remuneration policy and fiscal sustainability, falls squarely within that category. 77. It follows that any expectation held by the Petitioners was inherently contingent upon lawful review within successive remuneration cycles under Article 230 of the Constitution, and could not crystallise into an enforceable right immune from constitutional revision. 78. In the circumstances, the Court finds that no legitimate expectation capable of legal enforcement has been established in favour of the Petitioners. Whether the Reliefs of Certiorari and Mandamus are Available 79. The Court has considered the Petitioners’ prayers for the prerogative orders of certiorari and mandamus within the settled framework of judicial review jurisdiction. The governing principles are neither novel nor contentious, having been firmly articulated in both domestic and comparative jurisprudence. 80. It is trite, as stated in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge & 9 Others [1997] eKLR, that certiorari issues to quash a decision made without jurisdiction, in excess of jurisdiction, or where the decision is tainted by illegality, irrationality, or procedural impropriety. Mandamus, on the other hand, lies to compel the performance of a public duty which is clear, specific, and legally binding, where there has been a refusal, neglect, or failure to act. HCCHRPETMISCE058/2024 JDT Page 29 | 34

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81. Equally settled is the principle that judicial review is concerned not with the merits of a decision, but with the decision-making process itself. In Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, the Court emphasised that judicial review does not entitle a court to substitute its own view for that of the lawful decision-maker merely because it would have reached a different conclusion. 82. The Supreme Court, in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, further underscored that courts must exercise judicial restraint when called upon to interrogate decisions of constitutional and statutory bodies acting within their mandate, and may only intervene where illegality, irrationality, procedural impropriety, or breach of the Constitution is clearly demonstrated. This position is reinforced by comparative authority in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (2000), where it was held that judicial review is not an avenue for courts to usurp the functions of lawful decision-makers or substitute their own judgment for that of constitutionally mandated authorities. 83. When the foregoing principles are applied to the present matter, the conclusion becomes inescapable. The Court finds no demonstration of illegality, irrationality, procedural impropriety, or breach of constitutional or statutory duty on the part of the 1st Respondent. On the contrary, the impugned remuneration framework was formulated and implemented squarely within the constitutional mandate conferred under Article 230 of the Constitution, and in accordance with the guiding principles of fiscal HCCHRPETMISCE058/2024 JDT Page 30 | 34

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sustainability, equity, transparency, and responsible public finance management under Article 201. 84. In those circumstances, the threshold for the intervention of the Court by way of certiorari is not met. There is neither an unlawful act to be quashed nor a procedurally defective process to be invalidated. The Petitioners have not displaced the presumption of legality attaching to the actions of a constitutionally established commission acting within its field of competence. 85. The prayer for mandamus is even more fundamentally misconceived. What is sought, in substance, is an order compelling the 1 st Respondent to formulate and promulgate a specific remuneration structure and to prescribe particular monetary benefits. That relief would, in effect, require this Court to step into the constitutional and technical domain exclusively reserved for the Salaries and Remuneration Commission. 86. Such an invitation cannot be countenanced. It would amount not merely to judicial intervention, but to judicial substitution of decision-making authority in a field expressly entrusted to an independent constitutional commission. This would offend the doctrine of separation of powers, which requires each organ of State to remain within the limits of its constitutionally assigned mandate. 87. The determination of remuneration and benefits for State officers is inherently polycentric, involving technical evaluation, fiscal calibration, and policy balancing across competing public interests. These considerations fall HCCHRPETMISCE058/2024 JDT Page 31 | 34

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squarely within the institutional competence of the 1 st Respondent and not the Court. 88. As cautioned by the Supreme Court in Mumo Matemu, courts must resist the temptation to descend into the arena of administrative or policy formulation under the guise of judicial review. Similarly, the principle articulated in Pharmaceutical Manufacturers Association of South Africa reinforces that judicial review is not a licence for courts to prefer alternative policy outcomes over those lawfully adopted by competent authorities. 89. In the present case, the 1st Respondent acted within its constitutional and statutory remit, and its decision-making process has not been shown to suffer from any constitutional infirmity. The impugned Gazette Notices therefore remain insulated from judicial interference. 90. In the premises, the Court finds that the strict threshold for judicial review has not been met. The remedies of certiorari and mandamus are accordingly not available in the circumstances of this case, and the prayers for their grant must fail. CONCLUSION 91. Arising from the foregoing analysis and determination of the issues placed before this Court, and upon a holistic evaluation of the pleadings, evidence, and applicable law, the Court reaches the following finding i. The differentiation in transport facilitation benefits does not constitute discrimination within the meaning of Article 27 of the Constitution. It is founded upon an intelligible and rational distinction grounded in the HCCHRPETMISCE058/2024 JDT Page 32 | 34

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functional attributes of the respective constitutional offices and the structural design of county governance, and is further justified by legitimate governmental objectives including fiscal prudence, equity, and administrative coherence. ii. The 1st Respondent complied with the constitutional dictates of public participation as required under Articles 10 and 201 of the Constitution. The process undertaken, when viewed holistically, was structured, consultative, and sufficiently inclusive of affected stakeholders, and thus meets the constitutional threshold of meaningful public participation as developed in jurisprudence. iii. The Petitioners have not established a legitimate expectation capable of legal protection or enforcement. The impugned benefit was expressly situated within a defined remuneration cycle and remained subject to lawful periodic review under Article 230 of the Constitution. In the absence of a clear, unambiguous, and unqualified representation capable of founding such expectation, the claim fails. iv. The reliefs of certiorari and mandamus are not available in the circumstances of this case. The impugned actions disclose no illegality, irrationality, or procedural impropriety. Grant of the orders sought would, in substance, amount to an impermissible incursion into the constitutionally designated mandate of the 1st Respondent under Article 230 of the Constitution, thereby offending the doctrine of separation of powers 92. In the result, and for the reasons set out in this judgment, the Petition is hereby dismissed in its entirety, with each party bearing its own costs. HCCHRPETMISCE058/2024 JDT Page 33 | 34

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Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 29TH DAY OF APRIL 2026. …………………………………………………………….. BAHATI MWAMUYE MBS JUDGE In the Presence Of: Counsel for the Petitioners – Mr. Mbatai h/b Mr. Issa Counsel for the 1st Respondent – Mr. Murukaru Wahome h/b Mr. James Sitienei Counsel for the 2nd Respondent - No Appearance Court Assistant – Mr. Sanja HCCHRPETMISCE058/2024 JDT Page 34 | 34

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