INTRODUCTION
1. The petitioner moved this court through petition dated 24 th June 2025 and supported by his affidavit of even date. The petitioner was appointed by the President of the Republic of Kenya through Gazette Notice No. 14345 of 2012 as a commissioner and member of the 1 st respondent for a term of six years commencing on 2 nd October 2012 and ending 2 nd October 2018.
2. In February 2013, together with other commissioners they went on a three-week bench-marking tour to Sweden, United Kingdom and Germany. While in the United Kingdom, he suffered stroke and was admitted in a UK Hospital. On 23 rd February 2013, he was flown back to Kenya and admitted at the Nairobi Hospital for two weeks. He thereafter continued to receive medical care and treatment under a cardiologist consultant based at the said Hospital.
3. It is the petitioner’s case that by a medical report from the said cardiologist, dated 27 th February 2013, he was placed on rest, remote activities, and constant medical check-ups and care, in the event symptoms warranted. Further because of this condition, he was unable to move or attend his day-to-day normal life. The 1 st respondent was kept apprised on his medical status by the medical team.
4. It is stated that by a letter dated 10 th February 2014 addressed to the Principal Secretary of the 2 nd respondent, the 1 st respondent asked the 2 nd respondent to withhold payments of remuneration and benefits to the petitioner, this was effected on 1 st March 2014. The 1 st respondent relied on the Govvernment of Kenya staff Rules and Regulations as the justification for the said letter.
5. Subsequently, the 1 st respondent, on their own motion and through several activities, attempted to have him removed as a commissioner. By letters dated 26 th March 2014 and 29 th May 2014 the 1 st respondent placed him on sick leave, and requested for a medical board to be convened to determine his ability to continue holding office.
6. Through a letter dated 18 th December 2014, addressed to the PS Interior, Hon. Monica Juma, the chairperson of the 1 st respondent then, Johnstone Kavulundi sought for his removal and replacement on the premise of his ill health, and inability to continue working as a commissioner. The 1 st respondent also approached the head of civil service to compel him to resign as a commissioner.
7. Thereafter, in September 2015, a petition for his removal as a commissioner of the 1 st respondent on health grounds was lodged to parliament by one Simon Katee on behalf of Juhudi Community Support Centre. This petition was seconded by the 1 st respondent and handed to the Parliamentary Committee on Administration and National Security. The chair approved the petition, and recommended the appointment of a tribunal under article 251(4)(b) of the Constitution.
8. It is stated that the parliamentary recommendations on the adopted report for his removal were communicated, by the clerk of the assembly to the chief of staff, for onward transmission to the president to appoint the tribunal. However, no tribunal was appointed and, in the end, he was not removed from office and remained a commissioner for the entire term.
9. The petitioner states that upon the expiry of his term on the 2 nd October 2018, he issued a demand letter to the 1 st respondent, seeking payment of his withheld salary. Consequently, he instituted Petition No. 115 of 2015 before the Employment and Labour Relations Court against the respondents. The ELRC upheld his petition in a judgment delivered on 2 nd July 2020. Upon appeal through Civil Appeal No. E146 of 2021, the decision of the ELRC was set aside, on the premise that the exclusive jurisdiction to interpret the Constitution and Bill of rights under article 165 (3) (b) is with the High Court. The court of appeal allowed him institute a claim against the respondents before the appropriate forum.
10. It is the petitioner’s case that based on the foregoing, the respondents’ actions were an affront to his right to fair administrative action, legitimate expectation, right to equal protection of law, right to human dignity and right to fair labour practices. They were also ultra vires their mandate and against public interest. The petitioner contends that as a result of the 1 st and 2 nd respondents’ actions, he suffered loss. He was deprived of his income and was forced to meet his medical expenses through his pension dues of Kshs. 5,094 per month. His family was faced with great economic hardship.
11. The petitioner seeks the following relief: -
1. A declaration that the withholding ad/or stoppage of his salary and benefits to his detriment was, without compliance with established constitutional processes, unlawful, unfair and unconstitutional, hence null and void.
2. An order of certiorari calling into this Honourable Court for the purposes of quashing forthwith the 2 nd respondent’s purported decision to withhold and/or stop the petitioner’s salary and benefits.
3. An order of mandamus for the purpose of compelling the respondents to pay the petitioner’s withheld salary and/or accrued salary for the unpaid period of 56 months between 10 th February 2014 to 2 nd of October 2018 at rate of Kshs. 639,000 pm amounting to Kshs. 35, 784,000.
4. General Damages against the respondents for violation, or infringement of his guaranteed constitutional rights, as demonstrated in the petition.
5. The respondents to bear the costs of this petition in any event.
SUMMARY OF THE 1 ST RESPONDENT’S RESPONSE
12. The 1 st respondent opposed the petition through replying affidavit sworn by Peter Leley on 31 st March 2026. The facts regarding the petitioner’s appointment as a commissioner and his illness are reiterated. It is further stated that although his doctors continued to provide medical updates regarding his health status, they did not contain any formal medical reports to comprehensively explain his necessity to stay off duty for the length recommended.
13. It is stated that after a long period of absence from duty by the petitioner (9 months), the Commission formally wrote to the petitioner’s doctors requesting a comprehensive medical report, to appraise itself of his medical status. The doctors recommended the petitioner stays off duty for an additional six weeks from 4 th December 2013.
14. It is contended that the prolonged absence of the petitioner from duty caused deliberations by the Commission which resolved that he placed on sick leave with effect from 1 st July 20123 as the Commission pursues his case with the relevant authorities including the Director of Medical Services. Subsequently, the Commission wrote to the National Treasury communicating its resolution. It recommended a full salary from July 1 st -September 2013; half salary from 1 st October -31 st December 2013 and Nil salary from1 st January to 30 th June 2014.
15. It is stated that the Commission in the letter dated 10 th February 2014 to the Principal Secretary- National Treasury, requested that the petitioner’s salary be stopped effective 1 st March 2014 as a stop gap measure. It is further stated that the 1 st respondent wrote to the Directorate of Medical Services requesting that he convenes a medical board to determine the suitability of the petitioner for his continued service with the Commission. The Ministry of Health authorised the Chairman of the National Medical Board at the National Spinal Injury Hospital to convene a medical board for medical proceedings.
16. Subsequently, the Commission formally notified the petitioner that the National Medical Board would be contacting him to appear before a medical board including the telephone contacts of the liaison officer that would plan for the date of the medical proceedings. On 20 th June 2014, the Director of Medical Services wrote to the Commission informing it that they had been unsuccessful in reaching the petitioner.
17. On 23 rd June 2014, the Head of Public Service wrote to the petitioner asking him to voluntarily resign from office due to his health as the Commission was engaged in extensive police reforms including vetting which demanded long hours of working that the petitioner could not engage in. The petitioner did not voluntarily resign from office causing the Commission challenges in achieving its strategic objectives of police reforms.
18. On 13 th October 2015, the Commission received a letter from the Clerk of the National Assembly seeking its position regarding a Parliamentary Petition lodged by Simon Katee on behalf of Juhudi Community Center seeking the removal of the petitioner due to gross misconduct and/or physical and mental incapacity to perfume the functions of the office. By the time of the petition, the petitioner has been absent from duty for 2 years and 7 months.
19. The Commission responded through letter dated 19 th October 2015 concurring with the petition. The petition was considered by the Committee on 22 nd October 2015 which found that it disclosed grounds of removal of the petitioner as a commissioner. The Committee recommended that the President appoints a tribunal in accordance with Article 251(5) of the Constitution. Despite this the President never appointed a tribunal.
20. It is contended that by refusing to voluntarily resign and refusing to undergo a medical board examination, the petitioner continued to hold office in absentia due to his physical incapacity to execute these duties. Resultantly, he only served the 1 st respondent for a period of four months out of the six-year term. It would therefore be against the principles of public service under article 232 of the Constitution to draw a salary for work never done.
21. It is asserted that by dint of article 249, the 1 st respondent is under a constitutional duty to observe constitutionalism by ensuring that there is no wastage of public funds. It is further denied that in discharging the said duty it acted in a discriminatory manner, maliciously or with ulterior motives. It is thus urged that it is in the public interest that the petition be dismissed with costs.
SUMMARY OF THE 2 ND AND 3 RD RESPONDENT’S RESPONSE
22. It is contended that the petition does not meet the test of a constitutional petition laid down in the case of Anarita Karimi Njeru v Republic [1979] eKLR and emphasised in the case of Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR . Apart from citing omnibus provisions of the Constitution, the petition has provided neither particulars of the alleged complaints, nor the manner of alleged infringements.
23. It is stated that the petitioner has admitted that despite not being at work, he continued to receive remuneration for over a year since he was taken ill. Pursuant to Article 251(1)(c) A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for physical or mental incapacity to perform the functions of office.
24. It is contended that the petitioner has attached documents particularly a letter dated 29 th May 2014 in which he was to appear before a medical board. The petitioner has also not adduced evidence showing that he was able and had the capacity to perform his duties and it is the removal from office which prevented him from doing so.
25. It is pleaded that the petitioner has submitted evidence of the Parliamentary Committee that recommended his removal to the president on grounds of his incapacity. It would be an unjust charge on the public coffers to give full pay for the remainder of the term during which the petitioner would not have been able to discharge his duties. This is because the remuneration and benefits of the office that petitioner held are dependent on the member’s ability to perform his duties.
26. The respondents aver that when the petitioner took up his appointment, there was a legitimate expectation that he would be able to perform the duties and functions attached to membership of the 1 st respondent. It is urged that the petition be dismissed as against the 2 nd and 3 rd respondents.
SUMMARY OF THE PETITIONER’S SUBMISSIONS
27. The petitioner asserts that his petition satisfies the standard in Anarita Karimi case. It expressly pleads the constitutional articles alleged to have been violated; the factual basis for each alleged violations have been pleaded with precision and the reliefs sought, are specific and tethered to the violations pleaded. The petition relies on the decision in Mumo Matemu v Trusted Society of Human Rights Alliance & Others [2014] eKLR; Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR to buttress that argument that the rule in Anarita should not be applied rigidly.
28. The petitioner cites article 250 (7) and (8) of the Constitution and the decisions in Republic v Kenya National Human Rights Commission & Anor [2012] eKLR; Katiba Institute bv Law Society of Kenya & Another [2015] eKLR; Law Society of Lenya & Another v National Assembly & Others; Warsame & Others (Interested Parties) [2018] KEHC 8892 and Law Society of Kenya V Attorney General & Another; Warsame & Another [2019] KEHC 10881 for the contention striping his salary undermines his independence and by extension that of the 1 st respondent itself.
29. It is submitted that neither the National Police Service Commission Act, the Constitution, nor any other law vests in the 1 st respondent the power to vary, suspend, withhold or stop the payment of remuneration and benefits of a Commissioner of a Constitutional Commission. That while the 1 st respondent cited Government of Kenya Staff Rules and Regulations as contained in section (8) Clause 1(i) of the Civil Service COR as the basis for its decision, this is not legally feasible. This is because, the petitioner was a state officer within the meaning of article 260 of the Constitution and was therefore governed by the Constitution.
30. It is asserted that the only constitutional mechanism by which the remuneration of a commissioner can be affected is by the suspension or removal of the Commissioner. The removal it is argued, is an exclusive presidential prerogative, exercised only after a petition passed by Parliament and a tribunal established under Article 251 of the Constitution has made a binding recommendation. The ELRC Court found that the actions of the respondents were unlawful.
31. It is urged that the petitioner’s removal process as pleaded in the petition was a constitutional nullity. He was never removed from office. No Tribunal was ever established by the President. Parliament adopted a committee recommendation on 28 th October 2015, but the President never acted on it. Hence, he served his full term as a Commissioner until 2 nd October 2018. The petitioner therefore served his full term as a commissioner until 2 nd October 2018. The legal consequence is that he was a serving Commissioner from 2 nd October 2012 to 2 nd October 2018; his remuneration was a charge on the Consolidated Fund which constitutionally inalienable and its stoppage was by dint of article 2(4) void.
32. According to the petitioner, the arguments regarding public interest militates against the dictates of article 250(8) of the Constitution. It is contended that respondents are themselves creatures of the Constitution and therefore bound by it in everything they do. The public interest it is argued, is that the Constitution be upheld. Reliance is placed on the decisions in the Communications Commission of Kenya & 5 others v Royal Meda Services Limited & 5 others [2014] eKLR; Republic v Kenya National Human Rights Commission [2012] eKLR and County Assembly of Kisumu v Kisumu County Assembly Service Board & others [2015] Civil Appeals Nos. 17 & 18 of 2015.
33. The petitioner submits that the respondents ignore the fact that he fell ill while on official duty and that penalising him for that illness is not only unjust but also discriminatory. In any event, the 1 st respondent continued to receive its budgetary allocation and all its commissioners continued to earn their salaries throughout the period.
34. It is asserted that by virtue of the aforesaid, the stoppage of the petitioner’s salary was a direct violation of articles 250(7) and (8) of the Constitution. It was a further violation of his right to legitimate expectation and his rights guaranteed under articles 47, 27, 28 and 41 of the Constitution. He relies on the decisions in Kanda v Government of Malaya [1962] AC 322; Dodhia v National & Grindlays Bank Ltd [1970] EA 195; Wilfred Mbith Jason v National Polce Service Commission [2016] Petition No.409 of 2015; Minister of Finance v Van Heerden [2004] ZACC 3 and S v Makwanyane [1995] ZACC 3 among others.
35. The petitioner asserts that the petition is not an abuse of the court process as alleged in light of the ELRC and Court of Appeal decision and that limitation does not apply to constitutional petitions unless expressly provided. The petitioner cites article 23, and 165 (3) (b) of the Constitution and the decision in Petition No. 14 of 2014 in the Matter of the Principle of Gender Representation in the National Assembly and Senate and Harun Thungu Wakaba v Attorney General [2013] eKLR that he is entitled to all withheld salary and benefits for a period of 56 months amounting to Kshs. 35, 784,000 and general damages of Kshs. 10,000,000
SUMMARY OF THE 1 ST RESPONDENT’S SUBMISSIONS
36. The 1 st respondent contends that owing to the petitioner’s situation as pleaded in its replying affidavit, it was prudent to make the decision as it did. This is because in perfoming its duties it is bound by the dictates of article 10 and 232 of the Constitution. Particularly, good governance, integrity, transparency, accountability, high standards of professional ethics among ithers.
37. The 1 st respondent relies on the decision of Judicial service Commission v Salaries and Remuneration Commission & another [2018] KEHC 4765 (KLR) for the contention that the independence of Constitutional Commissions such as the 1 st respondent not only limited to political independence but the independence extends to the decisions it makes with regard to its own operations and administration. Accordingly, this is one of the instances where the commission exercised its operational and administrative independence by writing to the National Treasury communicating its resolution detailing the petitioner’s sick leave and seeking implementation of the stop gap measure.
38. While placing reliance on the decision in Communications Commission of Kenya & 5 others v Royal Meda Services Ltd & 5 others [2014] eKLR the 1 st respondent asserts that it was acting within its Constitutional and statutory mandate in managing the petitioner’s situation. This aligned with its mandate with the provisions of article 73 and 249 of the Constitution.
39. Further while conceding that article 250(8) exists to shield Commissioners from arbitrary financial manipulation capable of undermining their decisional independence, it is urged that the constitutional guarantee was never intended to insulate every administrative consequence arising from prolonged incapacity or to require the expenditure of public funds irrespective of the Commission’s current constitutional obligations under articles 10, 73, 201 and 232.
40. The 1 st respondent invites the court to make a purposive interpretation of article 250(8) of the Constitution. It argues that a purposive interpretation will find that the said article is to protect Commissioners from financial coercion and executive manipulation by way of retaliatory interference with their remuneration and benefits, which was not the case in the instant circumstances.
41. It is reiterated that the petitioner fell ill, and was unable to return to work for an extended period of time. He was invited to attend the National Medical Board for an independent assessment of his medical condition but did not honour. No comprehensive medical reports were ever availed to the Commission to explain his absence from work and shed light on his condition. It was therefore prudent for the 1 st respondent to make an objective decision as a constitution commission within the dictates of articles 10, 73, 201 and 232 of the Constitution.
42. The 1 st respondent relies on the decision in In the Matter of Kenya National Commission on Human Rights [2014] eKLR and invites the court to apply a purposive and holistic interpretation of article 250(8) of the Constitution by not interpreting it in isolation from articles 10, 73, 201 and 232 of the Constitution. It hence urges the court to find that it did not violate articles 250 (7) and (8) of the Constitution in making the decision regarding the petitioner’s remuneration.
43. It is submitted that the constitutional violations have not been substantiated. While the petitioner alleges violation of article 47 of the Constitution, sufficient evidence has been provided of the communication between the petitioner and the 1 st respondent. It is also submitted that the petitioner has failed to establish how he was discriminated on the grounds of his heath status. Article 251(1)(c) provides that one of the grounds of removal of a member of a Constitutional commission or a holder of independent office is physical or mental incapacity.
44. That while the petitioner alleges violation of right to human dignity, the annexures in the 1 st respondents replying affidavit tells a different story. The commission showed compassion to hm by giving him an opportunity to recover from March to June 2013 with full pay and then giving him sick leave effective 1 st July 2013. It continued engagement with the petitioner and even sought to facilitate his medical assessment to justify his absence and establish of his physical incapacity. Finally, it pursued lawful institutional mechanisms to remedy the Constitutional crises it found itself in.
45. On legitimate expectation, the 1 st respondent relies on the decision in Communications Commission of Kenya & 5 others v Royal Media service Ltd & 5 others [2014] KESC 53 (KLR) and argues that a public authority cannot act contrary to the Constitution, statute or public law duties. It is urged that the petition be dismissed with costs.
ANALYSIS AND DETERMINATION
46. Having considered the pleadings and submissions filed herein, I frame the issues for determination as follows-
a) Whether the petition meets the threshold for a constitutional petition
b) Whether the petitioner’s rights under articles 27, 28, 47 and 250 (7) and (8) of the Constitution were violated
c) Whether the petitioner is entitled to the relief sought
Whether the petition meets the threshold for a constitutional petition
47. The test for a constitutional petition is premised on satisfaction of the specificity and precision requirement while drafting the petition. This was established by Court in Anarita Karimi Njeru vs Republic (1979) KLR 154 and affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
48. Further the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR stated as follows:
“[349] …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. principle emerges clearly from the High Court decision in Anarita Karimi
Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
49. The gravamen of this Petition is the suspension of the Petitioner’s salary and benefits during a period in which he had fallen ill and was unable to discharge the functions of his office as Commissioner of the National Police Service Commission. The record shows that following his illness, a Petition was lodged before the National Assembly seeking his removal pursuant to Article 251 of the Constitution. Parliament considered the matter, supported his removal, and transmitted its report to the President recommending the establishment of a tribunal under Article 251(4)(b). The President did not act on that recommendation, leaving the constitutional process incomplete and the Petitioner formally still in office.
50. Prior to the parliamentary process, and at the behest of the 1st Respondent, the 2nd Respondent suspended the Petitioner’s salary and benefits with effect from 1st March 2014. That suspension endured for the remainder of his tenure. Upon the expiry of his term on 2nd October 2018, the Petitioner demanded payment of all withheld remuneration, asserting that he had never been lawfully removed from office and therefore remained entitled to the full emoluments of a Commissioner for the duration of his constitutionally ‑ protected term.
51. The Petition therefore rests on two interlocking acts, the unilateral suspension of the Petitioner’s salary and benefits, and the President’s failure to establish a tribunal as constitutionally required. The Petitioner contends that these actions, taken together, constitute an unlawful derogation from the constitutional safeguards governing the tenure and removal of members of independent commissions. He asserts violations of fair labour practices, fair administrative action, human dignity, and protection from arbitrary deprivation of property.
52. In my view, the framing of the issues for determination is faithful to the constitutional architecture and demonstrates the requisite analytical clarity. The Petitioner identifies with specificity the impugned actions, the constitutional provisions allegedly violated, and the remedies sought. This is precisely the level of particularity demanded by the celebrated Anarita Karimi Njeru decision , now codified in Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
53. Accordingly, I affirm that the Petition meets the precision test. The Petition is therefore properly before this Court for substantive adjudication
Whether the petitioner’s rights under articles 27, 28, 47 and 250 (7) and (8) of the Constitution were violated
54. The Petitioner alleges that the respondent actions discriminated against him on account of his ill health. The Supreme Court in Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (Civ) (22 October 2021) (Judgment) guided as follows:
“[47] This court had occasion to lay emphasis on the burden of proof in cases of discrimination in the case of Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR where the Supreme Court applied Section 108 of the Evidence Act in requiring the claimant to prove his claim in a matter involving discrimination. The court also grappled with the issue of direct and indirect discrimination. The court observed thus:
“ [49] Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
[50] This court in Raila Odinga & others v Independent Electoral & Boundaries Commission & others, Petition No 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:
“…a petitioner should be under obligation to discharge the initial burden of proof before the Respondents are invited to bear the evidential burden….”
[51] In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the court, in discharge of the evidential burden establishing their treatment at the hands of 1 st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1 st respondent to prove the contrary. In the light of the turn of events at both of the superior courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.”
[48] Black’s Law Dictionary, 10th Edition defines discrimination as “failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.” However, it must be appreciated that not all cases of distinction amount to discrimination.”
55. The Court went on further to observe that:
“[50] In equal measure, we adopt the definition of discrimination in the High Court case of Peter K Waweru v Republic [2006] eKLR as follows:
“Discrimination means affording different treatment to different persons attributable
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1. The petitioner moved this court through petition dated 24 th June 2025 and supported by his affidavit of even date. The petitioner was appointed by the President of the Republic of Kenya through Gazette Notice No. 14345 of 2012 as a commissioner and member of the 1 st respondent for a term of six years commencing on 2 nd October 2012 and ending 2 nd October 2018.
2. In February 2013, together with other commissioners they went on a three-week bench-marking tour to Sweden, United Kingdom and Germany. While in the United Kingdom, he suffered stroke and was admitted in a UK Hospital. On 23 rd February 2013, he was flown back to Kenya and admitted at the Nairobi Hospital for two weeks. He thereafter continued to receive medical care and treatment under a cardiologist consultant based at the said Hospital.
3. It is the petitioner’s case that by a medical report from the said cardiologist, dated 27 th February 2013, he was placed on rest, remote activities, and constant medical check-ups and care, in the event symptoms warranted. Further because of this condition, he was unable to move or attend his day-to-day normal life. The 1 st respondent was kept apprised on his medical status by the medical team.
4. It is stated that by a letter dated 10 th February 2014 addressed to the Principal Secretary of the 2 nd respondent, the 1 st respondent asked the 2 nd respondent to withhold payments of remuneration and benefits to the petitioner, this was effected on 1 st March 2014. The 1 st respondent relied on the Govvernment of Kenya staff Rules and Regulations as the justification for the said letter.
5. Subsequently, the 1 st respondent, on their own motion and through several activities, attempted to have him removed as a commissioner. By letters dated 26 th March 2014 and 29 th May 2014 the 1 st respondent placed him on sick leave, and requested for a medical board to be convened to determine his ability to continue holding office.
6. Through a letter dated 18 th December 2014, addressed to the PS Interior, Hon. Monica Juma, the chairperson of the 1 st respondent then, Johnstone Kavulundi sought for his removal and replacement on the premise of his ill health, and inability to continue working as a commissioner. The 1 st respondent also approached the head of civil service to compel him to resign as a commissioner.
7. Thereafter, in September 2015, a petition for his removal as a commissioner of the 1 st respondent on health grounds was lodged to parliament by one Simon Katee on behalf of Juhudi Community Support Centre. This petition was seconded by the 1 st respondent and handed to the Parliamentary Committee on Administration and National Security. The chair approved the petition, and recommended the appointment of a tribunal under article 251(4)(b) of the Constitution.
8. It is stated that the parliamentary recommendations on the adopted report for his removal were communicated, by the clerk of the assembly to the chief of staff, for onward transmission to the president to appoint the tribunal. However, no tribunal was appointed and, in the end, he was not removed from office and remained a commissioner for the entire term.
9. The petitioner states that upon the expiry of his term on the 2 nd October 2018, he issued a demand letter to the 1 st respondent, seeking payment of his withheld salary. Consequently, he instituted Petition No. 115 of 2015 before the Employment and Labour Relations Court against the respondents. The ELRC upheld his petition in a judgment delivered on 2 nd July 2020. Upon appeal through Civil Appeal No. E146 of 2021, the decision of the ELRC was set aside, on the premise that the exclusive jurisdiction to interpret the Constitution and Bill of rights under article 165 (3) (b) is with the High Court. The court of appeal allowed him institute a claim against the respondents before the appropriate forum.
10. It is the petitioner’s case that based on the foregoing, the respondents’ actions were an affront to his right to fair administrative action, legitimate expectation, right to equal protection of law, right to human dignity and right to fair labour practices. They were also ultra vires their mandate and against public interest. The petitioner contends that as a result of the 1 st and 2 nd respondents’ actions, he suffered loss. He was deprived of his income and was forced to meet his medical expenses through his pension dues of Kshs. 5,094 per month. His family was faced with great economic hardship.
11. The petitioner seeks the following relief: -
1. A declaration that the withholding ad/or stoppage of his salary and benefits to his detriment was, without compliance with established constitutional processes, unlawful, unfair and unconstitutional, hence null and void.
2. An order of certiorari calling into this Honourable Court for the purposes of quashing forthwith the 2 nd respondent’s purported decision to withhold and/or stop the petitioner’s salary and benefits.
3. An order of mandamus for the purpose of compelling the respondents to pay the petitioner’s withheld salary and/or accrued salary for the unpaid period of 56 months between 10 th February 2014 to 2 nd of October 2018 at rate of Kshs. 639,000 pm amounting to Kshs. 35, 784,000.
4. General Damages against the respondents for violation, or infringement of his guaranteed constitutional rights, as demonstrated in the petition.
5. The respondents to bear the costs of this petition in any event.
SUMMARY OF THE 1 ST RESPONDENT’S RESPONSE
12. The 1 st respondent opposed the petition through replying affidavit sworn by Peter Leley on 31 st March 2026. The facts regarding the petitioner’s appointment as a commissioner and his illness are reiterated. It is further stated that although his doctors continued to provide medical updates regarding his health status, they did not contain any formal medical reports to comprehensively explain his necessity to stay off duty for the length recommended.
13. It is stated that after a long period of absence from duty by the petitioner (9 months), the Commission formally wrote to the petitioner’s doctors requesting a comprehensive medical report, to appraise itself of his medical status. The doctors recommended the petitioner stays off duty for an additional six weeks from 4 th December 2013.
14. It is contended that the prolonged absence of the petitioner from duty caused deliberations by the Commission which resolved that he placed on sick leave with effect from 1 st July 20123 as the Commission pursues his case with the relevant authorities including the Director of Medical Services. Subsequently, the Commission wrote to the National Treasury communicating its resolution. It recommended a full salary from July 1 st -September 2013; half salary from 1 st October -31 st December 2013 and Nil salary from1 st January to 30 th June 2014.
15. It is stated that the Commission in the letter dated 10 th February 2014 to the Principal Secretary- National Treasury, requested that the petitioner’s salary be stopped effective 1 st March 2014 as a stop gap measure. It is further stated that the 1 st respondent wrote to the Directorate of Medical Services requesting that he convenes a medical board to determine the suitability of the petitioner for his continued service with the Commission. The Ministry of Health authorised the Chairman of the National Medical Board at the National Spinal Injury Hospital to convene a medical board for medical proceedings.
16. Subsequently, the Commission formally notified the petitioner that the National Medical Board would be contacting him to appear before a medical board including the telephone contacts of the liaison officer that would plan for the date of the medical proceedings. On 20 th June 2014, the Director of Medical Services wrote to the Commission informing it that they had been unsuccessful in reaching the petitioner.
17. On 23 rd June 2014, the Head of Public Service wrote to the petitioner asking him to voluntarily resign from office due to his health as the Commission was engaged in extensive police reforms including vetting which demanded long hours of working that the petitioner could not engage in. The petitioner did not voluntarily resign from office causing the Commission challenges in achieving its strategic objectives of police reforms.
18. On 13 th October 2015, the Commission received a letter from the Clerk of the National Assembly seeking its position regarding a Parliamentary Petition lodged by Simon Katee on behalf of Juhudi Community Center seeking the removal of the petitioner due to gross misconduct and/or physical and mental incapacity to perfume the functions of the office. By the time of the petition, the petitioner has been absent from duty for 2 years and 7 months.
19. The Commission responded through letter dated 19 th October 2015 concurring with the petition. The petition was considered by the Committee on 22 nd October 2015 which found that it disclosed grounds of removal of the petitioner as a commissioner. The Committee recommended that the President appoints a tribunal in accordance with Article 251(5) of the Constitution. Despite this the President never appointed a tribunal.
20. It is contended that by refusing to voluntarily resign and refusing to undergo a medical board examination, the petitioner continued to hold office in absentia due to his physical incapacity to execute these duties. Resultantly, he only served the 1 st respondent for a period of four months out of the six-year term. It would therefore be against the principles of public service under article 232 of the Constitution to draw a salary for work never done.
21. It is asserted that by dint of article 249, the 1 st respondent is under a constitutional duty to observe constitutionalism by ensuring that there is no wastage of public funds. It is further denied that in discharging the said duty it acted in a discriminatory manner, maliciously or with ulterior motives. It is thus urged that it is in the public interest that the petition be dismissed with costs.
SUMMARY OF THE 2 ND AND 3 RD RESPONDENT’S RESPONSE
22. It is contended that the petition does not meet the test of a constitutional petition laid down in the case of Anarita Karimi Njeru v Republic [1979] eKLR and emphasised in the case of Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR . Apart from citing omnibus provisions of the Constitution, the petition has provided neither particulars of the alleged complaints, nor the manner of alleged infringements.
23. It is stated that the petitioner has admitted that despite not being at work, he continued to receive remuneration for over a year since he was taken ill. Pursuant to Article 251(1)(c) A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for physical or mental incapacity to perform the functions of office.
24. It is contended that the petitioner has attached documents particularly a letter dated 29 th May 2014 in which he was to appear before a medical board. The petitioner has also not adduced evidence showing that he was able and had the capacity to perform his duties and it is the removal from office which prevented him from doing so.
25. It is pleaded that the petitioner has submitted evidence of the Parliamentary Committee that recommended his removal to the president on grounds of his incapacity. It would be an unjust charge on the public coffers to give full pay for the remainder of the term during which the petitioner would not have been able to discharge his duties. This is because the remuneration and benefits of the office that petitioner held are dependent on the member’s ability to perform his duties.
26. The respondents aver that when the petitioner took up his appointment, there was a legitimate expectation that he would be able to perform the duties and functions attached to membership of the 1 st respondent. It is urged that the petition be dismissed as against the 2 nd and 3 rd respondents.
SUMMARY OF THE PETITIONER’S SUBMISSIONS
27. The petitioner asserts that his petition satisfies the standard in Anarita Karimi case. It expressly pleads the constitutional articles alleged to have been violated; the factual basis for each alleged violations have been pleaded with precision and the reliefs sought, are specific and tethered to the violations pleaded. The petition relies on the decision in Mumo Matemu v Trusted Society of Human Rights Alliance & Others [2014] eKLR; Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR to buttress that argument that the rule in Anarita should not be applied rigidly.
28. The petitioner cites article 250 (7) and (8) of the Constitution and the decisions in Republic v Kenya National Human Rights Commission & Anor [2012] eKLR; Katiba Institute bv Law Society of Kenya & Another [2015] eKLR; Law Society of Lenya & Another v National Assembly & Others; Warsame & Others (Interested Parties) [2018] KEHC 8892 and Law Society of Kenya V Attorney General & Another; Warsame & Another [2019] KEHC 10881 for the contention striping his salary undermines his independence and by extension that of the 1 st respondent itself.
29. It is submitted that neither the National Police Service Commission Act, the Constitution, nor any other law vests in the 1 st respondent the power to vary, suspend, withhold or stop the payment of remuneration and benefits of a Commissioner of a Constitutional Commission. That while the 1 st respondent cited Government of Kenya Staff Rules and Regulations as contained in section (8) Clause 1(i) of the Civil Service COR as the basis for its decision, this is not legally feasible. This is because, the petitioner was a state officer within the meaning of article 260 of the Constitution and was therefore governed by the Constitution.
30. It is asserted that the only constitutional mechanism by which the remuneration of a commissioner can be affected is by the suspension or removal of the Commissioner. The removal it is argued, is an exclusive presidential prerogative, exercised only after a petition passed by Parliament and a tribunal established under Article 251 of the Constitution has made a binding recommendation. The ELRC Court found that the actions of the respondents were unlawful.
31. It is urged that the petitioner’s removal process as pleaded in the petition was a constitutional nullity. He was never removed from office. No Tribunal was ever established by the President. Parliament adopted a committee recommendation on 28 th October 2015, but the President never acted on it. Hence, he served his full term as a Commissioner until 2 nd October 2018. The petitioner therefore served his full term as a commissioner until 2 nd October 2018. The legal consequence is that he was a serving Commissioner from 2 nd October 2012 to 2 nd October 2018; his remuneration was a charge on the Consolidated Fund which constitutionally inalienable and its stoppage was by dint of article 2(4) void.
32. According to the petitioner, the arguments regarding public interest militates against the dictates of article 250(8) of the Constitution. It is contended that respondents are themselves creatures of the Constitution and therefore bound by it in everything they do. The public interest it is argued, is that the Constitution be upheld. Reliance is placed on the decisions in the Communications Commission of Kenya & 5 others v Royal Meda Services Limited & 5 others [2014] eKLR; Republic v Kenya National Human Rights Commission [2012] eKLR and County Assembly of Kisumu v Kisumu County Assembly Service Board & others [2015] Civil Appeals Nos. 17 & 18 of 2015.
33. The petitioner submits that the respondents ignore the fact that he fell ill while on official duty and that penalising him for that illness is not only unjust but also discriminatory. In any event, the 1 st respondent continued to receive its budgetary allocation and all its commissioners continued to earn their salaries throughout the period.
34. It is asserted that by virtue of the aforesaid, the stoppage of the petitioner’s salary was a direct violation of articles 250(7) and (8) of the Constitution. It was a further violation of his right to legitimate expectation and his rights guaranteed under articles 47, 27, 28 and 41 of the Constitution. He relies on the decisions in Kanda v Government of Malaya [1962] AC 322; Dodhia v National & Grindlays Bank Ltd [1970] EA 195; Wilfred Mbith Jason v National Polce Service Commission [2016] Petition No.409 of 2015; Minister of Finance v Van Heerden [2004] ZACC 3 and S v Makwanyane [1995] ZACC 3 among others.
35. The petitioner asserts that the petition is not an abuse of the court process as alleged in light of the ELRC and Court of Appeal decision and that limitation does not apply to constitutional petitions unless expressly provided. The petitioner cites article 23, and 165 (3) (b) of the Constitution and the decision in Petition No. 14 of 2014 in the Matter of the Principle of Gender Representation in the National Assembly and Senate and Harun Thungu Wakaba v Attorney General [2013] eKLR that he is entitled to all withheld salary and benefits for a period of 56 months amounting to Kshs. 35, 784,000 and general damages of Kshs. 10,000,000
SUMMARY OF THE 1 ST RESPONDENT’S SUBMISSIONS
36. The 1 st respondent contends that owing to the petitioner’s situation as pleaded in its replying affidavit, it was prudent to make the decision as it did. This is because in perfoming its duties it is bound by the dictates of article 10 and 232 of the Constitution. Particularly, good governance, integrity, transparency, accountability, high standards of professional ethics among ithers.
37. The 1 st respondent relies on the decision of Judicial service Commission v Salaries and Remuneration Commission & another [2018] KEHC 4765 (KLR) for the contention that the independence of Constitutional Commissions such as the 1 st respondent not only limited to political independence but the independence extends to the decisions it makes with regard to its own operations and administration. Accordingly, this is one of the instances where the commission exercised its operational and administrative independence by writing to the National Treasury communicating its resolution detailing the petitioner’s sick leave and seeking implementation of the stop gap measure.
38. While placing reliance on the decision in Communications Commission of Kenya & 5 others v Royal Meda Services Ltd & 5 others [2014] eKLR the 1 st respondent asserts that it was acting within its Constitutional and statutory mandate in managing the petitioner’s situation. This aligned with its mandate with the provisions of article 73 and 249 of the Constitution.
39. Further while conceding that article 250(8) exists to shield Commissioners from arbitrary financial manipulation capable of undermining their decisional independence, it is urged that the constitutional guarantee was never intended to insulate every administrative consequence arising from prolonged incapacity or to require the expenditure of public funds irrespective of the Commission’s current constitutional obligations under articles 10, 73, 201 and 232.
40. The 1 st respondent invites the court to make a purposive interpretation of article 250(8) of the Constitution. It argues that a purposive interpretation will find that the said article is to protect Commissioners from financial coercion and executive manipulation by way of retaliatory interference with their remuneration and benefits, which was not the case in the instant circumstances.
41. It is reiterated that the petitioner fell ill, and was unable to return to work for an extended period of time. He was invited to attend the National Medical Board for an independent assessment of his medical condition but did not honour. No comprehensive medical reports were ever availed to the Commission to explain his absence from work and shed light on his condition. It was therefore prudent for the 1 st respondent to make an objective decision as a constitution commission within the dictates of articles 10, 73, 201 and 232 of the Constitution.
42. The 1 st respondent relies on the decision in In the Matter of Kenya National Commission on Human Rights [2014] eKLR and invites the court to apply a purposive and holistic interpretation of article 250(8) of the Constitution by not interpreting it in isolation from articles 10, 73, 201 and 232 of the Constitution. It hence urges the court to find that it did not violate articles 250 (7) and (8) of the Constitution in making the decision regarding the petitioner’s remuneration.
43. It is submitted that the constitutional violations have not been substantiated. While the petitioner alleges violation of article 47 of the Constitution, sufficient evidence has been provided of the communication between the petitioner and the 1 st respondent. It is also submitted that the petitioner has failed to establish how he was discriminated on the grounds of his heath status. Article 251(1)(c) provides that one of the grounds of removal of a member of a Constitutional commission or a holder of independent office is physical or mental incapacity.
44. That while the petitioner alleges violation of right to human dignity, the annexures in the 1 st respondents replying affidavit tells a different story. The commission showed compassion to hm by giving him an opportunity to recover from March to June 2013 with full pay and then giving him sick leave effective 1 st July 2013. It continued engagement with the petitioner and even sought to facilitate his medical assessment to justify his absence and establish of his physical incapacity. Finally, it pursued lawful institutional mechanisms to remedy the Constitutional crises it found itself in.
45. On legitimate expectation, the 1 st respondent relies on the decision in Communications Commission of Kenya & 5 others v Royal Media service Ltd & 5 others [2014] KESC 53 (KLR) and argues that a public authority cannot act contrary to the Constitution, statute or public law duties. It is urged that the petition be dismissed with costs.
ANALYSIS AND DETERMINATION
46. Having considered the pleadings and submissions filed herein, I frame the issues for determination as follows-
a) Whether the petition meets the threshold for a constitutional petition
b) Whether the petitioner’s rights under articles 27, 28, 47 and 250 (7) and (8) of the Constitution were violated
c) Whether the petitioner is entitled to the relief sought
Whether the petition meets the threshold for a constitutional petition
47. The test for a constitutional petition is premised on satisfaction of the specificity and precision requirement while drafting the petition. This was established by Court in Anarita Karimi Njeru vs Republic (1979) KLR 154 and affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as follows:
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
48. Further the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR stated as follows:
“[349] …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. principle emerges clearly from the High Court decision in Anarita Karimi
Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”
49. The gravamen of this Petition is the suspension of the Petitioner’s salary and benefits during a period in which he had fallen ill and was unable to discharge the functions of his office as Commissioner of the National Police Service Commission. The record shows that following his illness, a Petition was lodged before the National Assembly seeking his removal pursuant to Article 251 of the Constitution. Parliament considered the matter, supported his removal, and transmitted its report to the President recommending the establishment of a tribunal under Article 251(4)(b). The President did not act on that recommendation, leaving the constitutional process incomplete and the Petitioner formally still in office.
50. Prior to the parliamentary process, and at the behest of the 1st Respondent, the 2nd Respondent suspended the Petitioner’s salary and benefits with effect from 1st March 2014. That suspension endured for the remainder of his tenure. Upon the expiry of his term on 2nd October 2018, the Petitioner demanded payment of all withheld remuneration, asserting that he had never been lawfully removed from office and therefore remained entitled to the full emoluments of a Commissioner for the duration of his constitutionally ‑ protected term.
51. The Petition therefore rests on two interlocking acts, the unilateral suspension of the Petitioner’s salary and benefits, and the President’s failure to establish a tribunal as constitutionally required. The Petitioner contends that these actions, taken together, constitute an unlawful derogation from the constitutional safeguards governing the tenure and removal of members of independent commissions. He asserts violations of fair labour practices, fair administrative action, human dignity, and protection from arbitrary deprivation of property.
52. In my view, the framing of the issues for determination is faithful to the constitutional architecture and demonstrates the requisite analytical clarity. The Petitioner identifies with specificity the impugned actions, the constitutional provisions allegedly violated, and the remedies sought. This is precisely the level of particularity demanded by the celebrated Anarita Karimi Njeru decision , now codified in Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
53. Accordingly, I affirm that the Petition meets the precision test. The Petition is therefore properly before this Court for substantive adjudication
Whether the petitioner’s rights under articles 27, 28, 47 and 250 (7) and (8) of the Constitution were violated
54. The Petitioner alleges that the respondent actions discriminated against him on account of his ill health. The Supreme Court in Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (Civ) (22 October 2021) (Judgment) guided as follows:
“[47] This court had occasion to lay emphasis on the burden of proof in cases of discrimination in the case of Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR where the Supreme Court applied Section 108 of the Evidence Act in requiring the claimant to prove his claim in a matter involving discrimination. The court also grappled with the issue of direct and indirect discrimination. The court observed thus:
“ [49] Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
[50] This court in Raila Odinga & others v Independent Electoral & Boundaries Commission & others, Petition No 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:
“…a petitioner should be under obligation to discharge the initial burden of proof before the Respondents are invited to bear the evidential burden….”
[51] In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the court, in discharge of the evidential burden establishing their treatment at the hands of 1 st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1 st respondent to prove the contrary. In the light of the turn of events at both of the superior courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.”
[48] Black’s Law Dictionary, 10th Edition defines discrimination as “failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.” However, it must be appreciated that not all cases of distinction amount to discrimination.”
55. The Court went on further to observe that:
“[50] In equal measure, we adopt the definition of discrimination in the High Court case of Peter K Waweru v Republic [2006] eKLR as follows:
“Discrimination means affording different treatment to different persons attributable
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