Introduction
1. The Petition dated 30 th August 2023 is supported by the Petitioner’s supporting affidavit of even date and a supplementary affidavit dated 17 th May 2024.
2. This Petition assails the 1 st Respondent’s decision to review the remuneration and benefits payable to state officers in the financial years 2023/2024 and 2024/2025. This review cycle covered the 3 rd Remuneration and Benefits Review Cycle. Remuneration and Benefits Review cycles are undertaken by the Respondent every four financial years. This covered the period 2021/2022 -2024/2025.
3. The Petitioner’s grievance is that in arriving at this decision, the 1 st Respondent did not conduct effective public participation for it did not disclose important information it had relied on to enable the public interrogate the reasons thereof properly, that 1 st Respondent backdated the reviewed rates for the State officers to allow them take effect at a date earlier than the actual date of their gazettement which was an irresponsible, imprudent and uneconomic utilization of national resources, that the decision pushes the needs of State Officers ahead of the segments in the population deserving state protection for instance; those named in Articles 53-57 of the Constitution and, finally, the 1 st Respondent review is not in tandem with the principles it ought to have taken into account as specified in Article 230 (5) of the Constitution. The Petitioner thus alleges violation of various Articles of the Constitution which include- Article 2 (2) & (4), 10 (2), 201, 230 (4) & (5) and, 232 (1) & (2).
4. For this reason, the Petitioner brings this Petition against the Respondents seeking the following reliefs:
Declarations
a) The 1 st Respondent failed to discharge its constitutional duty to facilitate public participation prior to setting the remuneration and benefits for State officers for financial years 2023/2024 and 2024/2025.
b) The 1 st Respondent failed to fulfil its obligations as required by the Constitution, including taking into account the principles set out in Articles 10, 201, 230[5], 232[1] and [2], 249[1] and [2] and 258[1], when it increased the remuneration and benefits payable to State officers for financial years 2023/2024 and 2024/2025.
c) The 1 st Respondent could not commence the increased remuneration and benefits for State officers for financial years 2023/2024 to 01.07.2023, to a date before the publication of the applicable constitutional instruments in the Kenya Gazette on 09.08.2023.
d) The 1 st Respondent failed to uphold its independence when it decided to retain the remuneration and benefits for the President and Deputy President of the Republic at the same level as those notified in the Gazette Notice No. 8792 of 27.07.2022.
e) The 2 nd Respondent failed to discharge its constitutional mandate, including promoting, protecting and upholding the rule of law and defending the public interest, in its advice to the 1 st Respondent about compliance with the Constitution in setting and reviewing the remuneration and benefits payable to State officers for financial years 2023/2024 and 2024/2025.
f) The constitutional instruments notifying the remuneration and benefits payable to State officers for financial years 2023/2024 and 2024/2025 and published as Kenya Gazette Notices No. 10346 to 10352 and dated 09.08.2023, are unconstitutional, null and void.
Orders
5. The Court be pleased to issues orders:
a) Quashing the constitutional instruments notifying the remuneration and benefits payable to State officers for financial years 2023/2024 and 2024/2025 and published as Kenya Gazette Notices No. 10346 to 10352 and dated 09.08.2023.
b) Requiring the Respondents, working with other State organs, to immediately recover any additional remuneration and benefits, over and above those payable immediately before the publication of the impugned instruments, paid to State officers pursuant to the impugned constitutional instrument.
c) Requiring parties in these proceedings to meet own costs.
d) Any other appropriate relief that commends itself to this Court to meet the requirements of the Constitution.
Petitioner’s Case
6. The Petitioner commences by stating that the 1 st Respondent on 30 th June 2023, invited the public and various stakeholders to give their views on the proposed remuneration and benefits for State officers for the financial years 2023/2024 and 2024/2025. For the purpose of that exercise, the 1 st Respondent provided a table of the proposed remuneration and benefits on its website.
7. The Petitioner questions the 1 st Respondent table display with the proposed new rates without disclosing the factors that informed that decision. In view of the insufficiency of the information, the Petitioner states that he wrote to the 1 st Respondent requesting for additional information as to how the proposed new rates were arrived especially the matter that the 1 st Respondent determined that the proposed increases met the requirements of Article 230(5)(a) of the Constitution.
8. The Petitioner notes that this correspondence was also copied to the Commission on Administrative Justice (CAJ). The Petitioner asserts that this information was not provided by the 1 st Respondent. However, CAJ responded to him on 7 th August 2023 indicating that the information he was seeking in reference to the proposed remuneration and benefits structures for State Officers had been already been divulged by the 1 st Respondent in its website.
9. The Petitioner further depones he went ahead wrote to the 1 st Respondent opposing the proposed changes on 13/7/2023 in which he pointed out that due to the 1 st Respondent’s failure to provide enough information to the public as part of its public participation exercise, the proposed increase in the remuneration and benefits would be unlawful. In addition, he indicated that the proposed changes could not lawfully be backdated to commence on a date earlier than the date of notification in the Kenya Gazette. The Petitioner avers that the 1 st Respondent acknowledged receipt of his memoranda.
10. On 9 th August 2023, through Kenya Gazette Notices No. 10346 to 10352, published as Special Issue Vol. CXXV – No. 177 , the 1 st Respondent gazetted the increased remuneration and benefits payable to State officers in which for financial year 2023/2024, the rates were to commence on 1 st July 2023 whereas for financial year 2024/2025 on 1 st July 2024.
11. The Petitioner faults the 1 st Respondent’s decision to increase and backdate the new rates of remuneration and benefits for State officers asserting it violates of Articles 2(2) & (4), 10(2), 201, 230(4) and (5) and 232(1) and (2) of the Constitution.
12. Furthermore, the Petitioner argues that the 1 st Respondent’s failed to provide adequate information to the public to enable the members of public to understand how it arrived at the decision to increase the remuneration and benefits for State Officers thereby violating the Articles 10(2), 230(5) and 232(1) of the Constitution. Further that the public participation conducted by the 1 st Respondent was inadequate and so violated Article 201 of the Constitution.
13. The Petitioner took issue with the 1 st Respondent for retaining the remuneration and benefits payable to the President and his Deputy in the financial years 2023/2024 and 2024/2025 at the same levels as was notified previously in the Gazette Notice No. 8792 of 27 th July 2022. The Petitioner claimed that the 1 st Respondent provided no other reason and the reason behind it was because it was acting in compliance with the President’s instructions that he and his Deputy did not wish to have their remuneration and benefits increased and thus by so doing, the 1 st Respondent yielded its constitutional independence to the direction of the President contrary to Article 249 of the Constitution.
14. The Petitioner stated that in a presentation made by a commissioner with the 1 st Respondent at the Third National Wage Bill Conference held on 15 th to 17 th April 2024 , the 1 st Respondent confirmed that the current total public compensation bill continues defy the recommended the statutory limitation of 35% of the public wage bill to revenue ratio and that explains why the Third National Wage Bill Conference was themed “Towards 35%” as an aspirational theme. The Petitioner contended that the wage bill to total revenue ratio in financial year 2020/2021 was 54.77%; 47.06% in 2021/2022, and was projected to be 46.64% in 2022/2023.
15. He asserts that while the 1 st Respondent keeps talking about having a public wage bill that is fiscally sustainable but has failed to talk the talk and walk the walk in the setting of the remuneration and benefits for State officers which the 1 st Respondent intends to increase by 19% over the four-year review cycle. The Petitioner points out that this is the highest increase across the whole public sector where public compensation bill for the national government has by now surpassed the recommended ratio thus breaching Article 230(5)(a) of the Constitution.
1 st Respondent’s Case
16. In reply, the 1 st Respondent through its Director – Remuneration Services, Dr. Hillary Patroba filed its replying affidavit sworn on 17 th November 2023. He reiterated the 1 st Respondent’s mandate as provided for under Article 230 of the Constitution as well as the principles set out under Section 12 of the Salaries and Remuneration Commission Act, 2011 (SRC Act).
17. He explained that by dint of Section 11 (e) of the SRC Act, the 1 st Respondent set out a 4-year remuneration and benefits review cycle. He notes that the first cycle covered the 2013/2014 - 2016/2017 financial years while the second cycle covered the 2017 /2018 - 2020/2021 financial years and finally the third cycle that covers 2021/2022- 2024/2025 financial years.
18. He depones that the 1 st Respondent set the state officers remuneration and benefits in 2013 under the first cycle. However, their pay remained the same during the second cycle as there was no upward review of the remuneration and benefits for state officers under the second cycle.
19. He depones that prior to setting the remuneration and benefits for state officers under the third cycle a number of measures were undertaken.
20. First, the 1 st Respondent evaluated all State Officer jobs so as to determine their relative worth. This worth was then used to establish the job grading structures so as ensure fair and equitable remuneration and benefits.
21. Second, the 1 st Respondent undertook international comparative surveys on the labour markets and trends in remuneration for state officers’ jobs so as to establish how other similarly placed economies, with similar structures of government, remunerate their equivalent of State officers.
22. Third, the 1 st Respondent undertook a survey of the economic performance of the Country which had been affected by the COVID-19 pandemic.
23. Furthermore, the 1 st Respondent sought the National Treasury’s advice vide a letter dated 21 st May 2021. Particularly, the 1 st Respondent sought guidance on: the economy's ability to afford and fiscally sustain pay reviews during the third cycle , allocation of Ksh. 6.8 billion for the financial year 2021/22 for review of remuneration and benefits for public officers serving in the national government and affordability and fiscal sustainability of phasing out the balance of Ksh. 68.5 Billion in the financial year 2022/23 to 2024/25 for review of remuneration and benefits for all public officers .
24. In its response dated 31 st May 2021, the National Treasury informed the 1 st Respondent that due to the effect of the COVID-19 pandemic on the performance of the economy and given that the economic recovery was expected to be slow, the upward review of the remuneration and benefits in the public service ought to be postponed for at least two fiscal years or until the economy had fully recovered.
25. He states that the 1 st Respondent noting the National Treasury’s advice issued a Circular dated 17 th June 2021 informing that: there would be no review of the basic salary structures in financial years 2021/2022 and 2022/2023 , there would be no additional funding provided for implementation of the job evaluation results and a review of the same would be done after two fiscal years as guided by the status of the economy . For this reason, there was no upward review in the third cycle.
26. He depones after the end of the two fiscal years, the 1 st Respondent wrote to the National Treasury through a letter dated 31 st August, 2022 requesting Ksh.90.1 billion for implementation of the review of remuneration and benefits for state officers and all other public officers. This was to be implemented in four-equal-phases between financial years 2023/2024 – 2026/2027.
27. The National Treasury in its response dated 3 rd October 2022 gave the green light and approved Ksh.22.6 billion for the financial year 2023/2024. In a subsequent letter dated 6 th July 2023, the National Treasury reviewed the amount to Ksh.21.7 billlion.
28. It is deponed that the proposed remuneration and benefits for all state officer and public officers for financial years 2023/2024 and 2024/2025 were guided by: the job evaluation grading structure, outcome of comparative surveys on the labour markets and trends in remuneration, confirmation of affordability and provision of funding by the National Treasury and the principles set out under Article 230 (5) of the Constitution and Section 12 of the SRC Act .
29. He depones that in view of this and in compliance with Articles 10, 201 and 230(5) of the Constitution, the 1 st Respondent invited the public and stakeholders on 30 th June 2023 , to submit views on the proposed remuneration and benefits for State officers.
30. He points out that the publication contained all the relevant information required to enable the public and stakeholders submit their views.
31. Thereafter, the revised remuneration and benefits for all State Officers were published in the Kenya Gazette under the third review cycle.
32. He asserts that contrary to the Petitioner’s assertions, the implementation of the remuneration and benefits structures was done in compliance with the Constitution and the law and was not subject to anyone’s direction or control.
33. He stresses that the Petition is not merited and thus should be dismissed with costs.
2 nd Respondent’s Case
34. The 2 nd Respondent opposed the Petition in the Grounds of Opposition dated 26 th May 2024 on the basis that:
i. The Petitioner herein has not demonstrated before the Court how the 2 nd Respondent has violated any constitutional provisions.
ii. The Access to Information Act, 2016 under Section 6 provides for the limitation of the right of access to information, which include a scenario where the information sought, is likely to involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made.
iii. Information relating to salary increment of civil servants would amount to a violation of their right to privacy.
iv. There is no requirement in law for a public body to provide a rationale for its decision. The 1 st Respondent, as established in the Constitution, and operationalized by statute, has the constitutional mandate to review and set the salaries and benefits of state and public officers.
v. The question of public participation has been extensively litigated upon. The parameters set is for the proposed policy or legislation to be presented to the public, and opportunity given for the members of the public to ventilate on the same.
vi. It is not in dispute that the information was availed to the public and views invited from the members of the public in line with the requirements for public participation.
vii. The instant Petition is based on a misunderstanding of the letter and the spirit of the law on access to information and by extension, public participation.
viii. The question of retrospective application of the law has been widely litigated upon. Despite the general rule that retrospective application of the law is prohibited, the Courts have provided for the exception as in the case of Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd &2 Others, SCK APP. No. 2 of 2011 (2012) eKLR where it was held that:
“[61] As for non-criminal legislation, the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature. (Halsburys Laws of England, 4th Edition Vol.44 at page 570). A retroactive law is not unconstitutional unless it: (i) is in the nature of a bill of attainder; (ii) impairs the obligation under contracts; (iii) divests vested rights; or (iv) is constitutionally forbidden.”
ix. The instant scenario allows for the gazette notices to be applied from a date earlier that the date of the actual gazettement.
x. From the above, it is clear that the Petition is premised on a clear misapplication of the law by the Petitioner.
Petitioners’ Submissions
35. The Petitioner filed submissions dated 10 th July 2024 in support of his Petition.
36. On public participation, the Petitioner submitted that the 1 st Respondent is required to undertake this exercise as envisaged under Article 10(2) (a) and 201 of the Constitution in line with its mandate under Article 230(4)(a) of the Constitution. Reliance was placed in British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties)[Petition No. 5 of 2017] where the Supreme Court guided as follows:
“Public participation has been entrenched in our Constitution as a national value and a principle of governance under Article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that permeates the Constitution and in accordance with Article 1(4) of the Constitution is exercised at both national and county levels”… Since the promulgation of the Constitution 2010, the question of the rationale, scope and application of public participation as a principle of governance has been subject of numerous decisions by the courts. The High Court in this matter appraised itself of the various decisions on the same, which appraisal the Court of Appeal readily endorsed. In the Matter of the National Land Commission, the Supreme Court placed the principle of public participation at the core of the concept of checks and balances in governance in the execution of their functions by the various arms of government, when we stated:
“[308] The conditioning medium within which these functions have to be conducted, is constituted by the national values and principles outlined in Article 10 of the Constitution: in particular, the rule of law; participation of the people; equity; inclusiveness; human rights; non-discrimination; good governance; integrity; transparency and accountability. It is to be noted that, the very essence of checks-and-balances touches on the principles of public participation, inclusiveness, integrity, accountability and transparency; and the performance of the constitutional and statutory functions is to be in line with values of integrity, transparency, good governance and accountability…”
37. The Petitioner submitted that the 1 st Respondent bears the burden of proving under Section 107 of the Evidence Act, that it complied with the Constitution, including its duty to facilitate public participation, when it set the impugned remunerations and benefits. According to him, the 1 st Respondent failed to subject its proposals to any form public participation. He added that the 1 st Respondent had not provided any evidence to demonstrate that it carried out any public participation before it published the impugned constitutional instruments. Equally, he argued that no evidence was adduced to show that it invited the public to give their views. Likewise, that no report was issued on the outcome of any submissions received from the public or any information on what impact, representations from the public had on its final decision. In his summation, the 1 st Respondent indeed failed to demonstrate that it actually facilitated public participation rendering its impugned instruments unconstitutional, null and void, ab initio.
38. Moreover, he stressed that whereas the powers donated to the 1 st Respondent under Article 230(4)(a) are exercisable without the direction or control of any person or authority, they must still be exercised in accordance with the Constitution. Reliance was placed in Ombati v Chief Justice & President of the Supreme Court & another; Kenya National Human Rights and Equality Commission & 2 others (Interested Party) (Petition E242 of 2022) [2022] KEHC 11630 (KLR) where it was held that:
“Regardless of the nature of the impugned Rules and the fact that the power to make them flows directly from the Constitution, the letter and spirit of the Constitution must be upheld in the process of enactment….the rules cannot make provisions which are in conflict with the national values and principles of governance or run contra the Bill of Rights or even usurp the powers of other constitutional entities. The emphasis here is that the any rules made by any entity must be in conformity with the Constitution.”
39. On whether the 1 st Respondent complied with Article 230(5) of the Constitution in setting the impugned remuneration and benefits for state officers, the Petitioner submitted that it did not. The Petitioner reiterating the contents of his affidavit noted that the 1 st Respondent had in fact admitted that the current public compensation bill is unconstitutional as it breaches the maximum target set by Section 15(2) (b), Public Finance Management Act and Regulation 26(1)(a) of the Public Finance Management (National Government) Regulations, 2015.Essentially, this means fewer resources are available to fund public services.
40. The Petitioner added that the 1 st Respondent also included, in the increase, previously-unannounced additions, without offering any justification for the same. The Petitioner emphasized that the 1 st Respondent has a duty to abide by the Constitution, including when fulfilling its functions.
41. On compliance with Article 249(2) of the Constitution, the Petitioner submitted that the 1 st Respondent had also violated this provision by surrendering its independence to the control of the President. He asserted that the 1 st Respondent had not provided any rational explanation why, those of the President and the Deputy President were, over the period covered, retained at the level set in the Kenya Gazette Notice No. 8792 of 27 th July 2022.
42. To buttress this issue, reliance was placed in the Matter of Interim Independent Electoral Commission [2011] eKLR where it was held that:
“It is a matter of which we take judicial notice, that the real purpose of the “independence clause”, with regard to Commissions and independent offices established under the Constitution, was to provide a safeguard against undue interference with such Commissions or offices, by other persons, or other institutions of government. Such a provision was incorporated in the Constitution as an antidote, in the light of regrettable memories of an all-powerful Presidency that, since Independence in 1963, had emasculated other arms of government, even as it irreparably trespassed upon the fundamental rights and freedoms of the individual. The Constitution established the several independent Commissions, alongside the Judicial Branch, entrusting to them special governance mandates of critical importance in the new dispensation; they are the custodians of the fundamental ingredients of democracy, such as rule of law, integrity, transparency, human rights, and public participation. The several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and, to perform this role effectively, they must operate without improper influences, fear or favour: this, indeed, is the purpose of the “independence clause”.
43. On the retrospective application of the impugned instruments, the Petitioner submitted that the 1 st Respondent cannot cause the impugned constitutional instruments to commence on a date before they were published in the Kenya Gazette. In his view, there is no provision in the Constitution that allows back-dating of constitutional instruments to a date before the decision was made and so the same is offensive to Article 10(2) and 201 of the Constitution.
44. Reliance was placed in Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others [2014] eKLR where it was held that:
“The Kenya Gazette is the official bulletin of the Government of Kenya. It announces to all and sundry the decisions of the Government. The only formal way the SRC could have conveyed its decision on the remuneration and benefits of state officers was through the Kenya Gazette.
85. The position and place of the Kenya Gazette in the affairs of this nation was addressed by the Court of Appeal in the case of Ali Hassan Joho & Another v. Suleiman Said Shahbal & 2 Others Court of Appeal Civil Appeal No 12 of 2013 thus:-
[24.] The Kenya Gazette is an official newspaper of the government in which official matters including official notices are published. The Gazette has evidentiary character. Section 68 of the interpretation and General Provisions Act provides:- “The production of a copy of the Gazette containing a written law or notice, or of copy of a written law or notice purporting to be printed by the Government Printer shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor of the written law or notice.”
Section 85 of the Evidence Act has identical provision………. The elections are matters of great public importance and the requirement that the result of elections be declared or published in the Gazette does not derogate from the intendment of section 76(1)(a). The requirement of Gazettement is required, among other things, to give the declared results a seal of certainty finality, and legality.”
45. The Petitioner further argued that by stating, in July 2022, that any changes in the remuneration and benefits payable to State officers for Financial Years 2023/2024 and 2024/2025 would be notified on or before 1 st July 2023, the 1 st Respondent created a legitimate expectation that it would comply with the Constitution. As such, failure to do this and instead, setting those remuneration and benefits on 9 th August 2023 and then backdating them to 1 st July 2023, the 1 st Respondent was a violation of the principles of transparency, accountability and good governance as set out in Constitution.
46. Reliance was placed in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where it was held that:
“An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation…”
47. To this end, the Petitioner urged the Court to issue orders, in the form of a structural interdict as an appropriate relief to remedy the violation of the Constitution as was recognized by the Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)[2021] eKLR .
1 st Respondent’s Submissions
48. The 1 st Respondent through its Counsel, James Sitienei filed submissions dated 20 th November 2024 and underscored the issues for discussion as: whether the 1 st Respondent undertook adequate public participation prior to setting the impugned remuneration and benefits for State officers, whether the 1 st Respondent complied with the constitutional and statutory principles in setting the remuneration and benefits, whether remuneration and benefits structures are constitutional instruments and whether implementation thereof can be back dated and whether the 1 st Respondent acted contrary to Article 249 (2) of the Constitution .
49. On the first issue, Counsel noted that this principle was appreciated by the Court in William Odhiambo Ramogi & 3 Others vs. The Attorney General & Others (2020) eKLR as follows:
“According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process. Public participation therefore refers to the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them. The processes may take different forms.”
50. Like dependence was placed in Mui Coal Basin Local Community & 15 Others v Permanent Secretary Minis
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1. The Petition dated 30 th August 2023 is supported by the Petitioner’s supporting affidavit of even date and a supplementary affidavit dated 17 th May 2024.
2. This Petition assails the 1 st Respondent’s decision to review the remuneration and benefits payable to state officers in the financial years 2023/2024 and 2024/2025. This review cycle covered the 3 rd Remuneration and Benefits Review Cycle. Remuneration and Benefits Review cycles are undertaken by the Respondent every four financial years. This covered the period 2021/2022 -2024/2025.
3. The Petitioner’s grievance is that in arriving at this decision, the 1 st Respondent did not conduct effective public participation for it did not disclose important information it had relied on to enable the public interrogate the reasons thereof properly, that 1 st Respondent backdated the reviewed rates for the State officers to allow them take effect at a date earlier than the actual date of their gazettement which was an irresponsible, imprudent and uneconomic utilization of national resources, that the decision pushes the needs of State Officers ahead of the segments in the population deserving state protection for instance; those named in Articles 53-57 of the Constitution and, finally, the 1 st Respondent review is not in tandem with the principles it ought to have taken into account as specified in Article 230 (5) of the Constitution. The Petitioner thus alleges violation of various Articles of the Constitution which include- Article 2 (2) & (4), 10 (2), 201, 230 (4) & (5) and, 232 (1) & (2).
4. For this reason, the Petitioner brings this Petition against the Respondents seeking the following reliefs:
Declarations
a) The 1 st Respondent failed to discharge its constitutional duty to facilitate public participation prior to setting the remuneration and benefits for State officers for financial years 2023/2024 and 2024/2025.
b) The 1 st Respondent failed to fulfil its obligations as required by the Constitution, including taking into account the principles set out in Articles 10, 201, 230[5], 232[1] and [2], 249[1] and [2] and 258[1], when it increased the remuneration and benefits payable to State officers for financial years 2023/2024 and 2024/2025.
c) The 1 st Respondent could not commence the increased remuneration and benefits for State officers for financial years 2023/2024 to 01.07.2023, to a date before the publication of the applicable constitutional instruments in the Kenya Gazette on 09.08.2023.
d) The 1 st Respondent failed to uphold its independence when it decided to retain the remuneration and benefits for the President and Deputy President of the Republic at the same level as those notified in the Gazette Notice No. 8792 of 27.07.2022.
e) The 2 nd Respondent failed to discharge its constitutional mandate, including promoting, protecting and upholding the rule of law and defending the public interest, in its advice to the 1 st Respondent about compliance with the Constitution in setting and reviewing the remuneration and benefits payable to State officers for financial years 2023/2024 and 2024/2025.
f) The constitutional instruments notifying the remuneration and benefits payable to State officers for financial years 2023/2024 and 2024/2025 and published as Kenya Gazette Notices No. 10346 to 10352 and dated 09.08.2023, are unconstitutional, null and void.
Orders
5. The Court be pleased to issues orders:
a) Quashing the constitutional instruments notifying the remuneration and benefits payable to State officers for financial years 2023/2024 and 2024/2025 and published as Kenya Gazette Notices No. 10346 to 10352 and dated 09.08.2023.
b) Requiring the Respondents, working with other State organs, to immediately recover any additional remuneration and benefits, over and above those payable immediately before the publication of the impugned instruments, paid to State officers pursuant to the impugned constitutional instrument.
c) Requiring parties in these proceedings to meet own costs.
d) Any other appropriate relief that commends itself to this Court to meet the requirements of the Constitution.
Petitioner’s Case
6. The Petitioner commences by stating that the 1 st Respondent on 30 th June 2023, invited the public and various stakeholders to give their views on the proposed remuneration and benefits for State officers for the financial years 2023/2024 and 2024/2025. For the purpose of that exercise, the 1 st Respondent provided a table of the proposed remuneration and benefits on its website.
7. The Petitioner questions the 1 st Respondent table display with the proposed new rates without disclosing the factors that informed that decision. In view of the insufficiency of the information, the Petitioner states that he wrote to the 1 st Respondent requesting for additional information as to how the proposed new rates were arrived especially the matter that the 1 st Respondent determined that the proposed increases met the requirements of Article 230(5)(a) of the Constitution.
8. The Petitioner notes that this correspondence was also copied to the Commission on Administrative Justice (CAJ). The Petitioner asserts that this information was not provided by the 1 st Respondent. However, CAJ responded to him on 7 th August 2023 indicating that the information he was seeking in reference to the proposed remuneration and benefits structures for State Officers had been already been divulged by the 1 st Respondent in its website.
9. The Petitioner further depones he went ahead wrote to the 1 st Respondent opposing the proposed changes on 13/7/2023 in which he pointed out that due to the 1 st Respondent’s failure to provide enough information to the public as part of its public participation exercise, the proposed increase in the remuneration and benefits would be unlawful. In addition, he indicated that the proposed changes could not lawfully be backdated to commence on a date earlier than the date of notification in the Kenya Gazette. The Petitioner avers that the 1 st Respondent acknowledged receipt of his memoranda.
10. On 9 th August 2023, through Kenya Gazette Notices No. 10346 to 10352, published as Special Issue Vol. CXXV – No. 177 , the 1 st Respondent gazetted the increased remuneration and benefits payable to State officers in which for financial year 2023/2024, the rates were to commence on 1 st July 2023 whereas for financial year 2024/2025 on 1 st July 2024.
11. The Petitioner faults the 1 st Respondent’s decision to increase and backdate the new rates of remuneration and benefits for State officers asserting it violates of Articles 2(2) & (4), 10(2), 201, 230(4) and (5) and 232(1) and (2) of the Constitution.
12. Furthermore, the Petitioner argues that the 1 st Respondent’s failed to provide adequate information to the public to enable the members of public to understand how it arrived at the decision to increase the remuneration and benefits for State Officers thereby violating the Articles 10(2), 230(5) and 232(1) of the Constitution. Further that the public participation conducted by the 1 st Respondent was inadequate and so violated Article 201 of the Constitution.
13. The Petitioner took issue with the 1 st Respondent for retaining the remuneration and benefits payable to the President and his Deputy in the financial years 2023/2024 and 2024/2025 at the same levels as was notified previously in the Gazette Notice No. 8792 of 27 th July 2022. The Petitioner claimed that the 1 st Respondent provided no other reason and the reason behind it was because it was acting in compliance with the President’s instructions that he and his Deputy did not wish to have their remuneration and benefits increased and thus by so doing, the 1 st Respondent yielded its constitutional independence to the direction of the President contrary to Article 249 of the Constitution.
14. The Petitioner stated that in a presentation made by a commissioner with the 1 st Respondent at the Third National Wage Bill Conference held on 15 th to 17 th April 2024 , the 1 st Respondent confirmed that the current total public compensation bill continues defy the recommended the statutory limitation of 35% of the public wage bill to revenue ratio and that explains why the Third National Wage Bill Conference was themed “Towards 35%” as an aspirational theme. The Petitioner contended that the wage bill to total revenue ratio in financial year 2020/2021 was 54.77%; 47.06% in 2021/2022, and was projected to be 46.64% in 2022/2023.
15. He asserts that while the 1 st Respondent keeps talking about having a public wage bill that is fiscally sustainable but has failed to talk the talk and walk the walk in the setting of the remuneration and benefits for State officers which the 1 st Respondent intends to increase by 19% over the four-year review cycle. The Petitioner points out that this is the highest increase across the whole public sector where public compensation bill for the national government has by now surpassed the recommended ratio thus breaching Article 230(5)(a) of the Constitution.
1 st Respondent’s Case
16. In reply, the 1 st Respondent through its Director – Remuneration Services, Dr. Hillary Patroba filed its replying affidavit sworn on 17 th November 2023. He reiterated the 1 st Respondent’s mandate as provided for under Article 230 of the Constitution as well as the principles set out under Section 12 of the Salaries and Remuneration Commission Act, 2011 (SRC Act).
17. He explained that by dint of Section 11 (e) of the SRC Act, the 1 st Respondent set out a 4-year remuneration and benefits review cycle. He notes that the first cycle covered the 2013/2014 - 2016/2017 financial years while the second cycle covered the 2017 /2018 - 2020/2021 financial years and finally the third cycle that covers 2021/2022- 2024/2025 financial years.
18. He depones that the 1 st Respondent set the state officers remuneration and benefits in 2013 under the first cycle. However, their pay remained the same during the second cycle as there was no upward review of the remuneration and benefits for state officers under the second cycle.
19. He depones that prior to setting the remuneration and benefits for state officers under the third cycle a number of measures were undertaken.
20. First, the 1 st Respondent evaluated all State Officer jobs so as to determine their relative worth. This worth was then used to establish the job grading structures so as ensure fair and equitable remuneration and benefits.
21. Second, the 1 st Respondent undertook international comparative surveys on the labour markets and trends in remuneration for state officers’ jobs so as to establish how other similarly placed economies, with similar structures of government, remunerate their equivalent of State officers.
22. Third, the 1 st Respondent undertook a survey of the economic performance of the Country which had been affected by the COVID-19 pandemic.
23. Furthermore, the 1 st Respondent sought the National Treasury’s advice vide a letter dated 21 st May 2021. Particularly, the 1 st Respondent sought guidance on: the economy's ability to afford and fiscally sustain pay reviews during the third cycle , allocation of Ksh. 6.8 billion for the financial year 2021/22 for review of remuneration and benefits for public officers serving in the national government and affordability and fiscal sustainability of phasing out the balance of Ksh. 68.5 Billion in the financial year 2022/23 to 2024/25 for review of remuneration and benefits for all public officers .
24. In its response dated 31 st May 2021, the National Treasury informed the 1 st Respondent that due to the effect of the COVID-19 pandemic on the performance of the economy and given that the economic recovery was expected to be slow, the upward review of the remuneration and benefits in the public service ought to be postponed for at least two fiscal years or until the economy had fully recovered.
25. He states that the 1 st Respondent noting the National Treasury’s advice issued a Circular dated 17 th June 2021 informing that: there would be no review of the basic salary structures in financial years 2021/2022 and 2022/2023 , there would be no additional funding provided for implementation of the job evaluation results and a review of the same would be done after two fiscal years as guided by the status of the economy . For this reason, there was no upward review in the third cycle.
26. He depones after the end of the two fiscal years, the 1 st Respondent wrote to the National Treasury through a letter dated 31 st August, 2022 requesting Ksh.90.1 billion for implementation of the review of remuneration and benefits for state officers and all other public officers. This was to be implemented in four-equal-phases between financial years 2023/2024 – 2026/2027.
27. The National Treasury in its response dated 3 rd October 2022 gave the green light and approved Ksh.22.6 billion for the financial year 2023/2024. In a subsequent letter dated 6 th July 2023, the National Treasury reviewed the amount to Ksh.21.7 billlion.
28. It is deponed that the proposed remuneration and benefits for all state officer and public officers for financial years 2023/2024 and 2024/2025 were guided by: the job evaluation grading structure, outcome of comparative surveys on the labour markets and trends in remuneration, confirmation of affordability and provision of funding by the National Treasury and the principles set out under Article 230 (5) of the Constitution and Section 12 of the SRC Act .
29. He depones that in view of this and in compliance with Articles 10, 201 and 230(5) of the Constitution, the 1 st Respondent invited the public and stakeholders on 30 th June 2023 , to submit views on the proposed remuneration and benefits for State officers.
30. He points out that the publication contained all the relevant information required to enable the public and stakeholders submit their views.
31. Thereafter, the revised remuneration and benefits for all State Officers were published in the Kenya Gazette under the third review cycle.
32. He asserts that contrary to the Petitioner’s assertions, the implementation of the remuneration and benefits structures was done in compliance with the Constitution and the law and was not subject to anyone’s direction or control.
33. He stresses that the Petition is not merited and thus should be dismissed with costs.
2 nd Respondent’s Case
34. The 2 nd Respondent opposed the Petition in the Grounds of Opposition dated 26 th May 2024 on the basis that:
i. The Petitioner herein has not demonstrated before the Court how the 2 nd Respondent has violated any constitutional provisions.
ii. The Access to Information Act, 2016 under Section 6 provides for the limitation of the right of access to information, which include a scenario where the information sought, is likely to involve the unwarranted invasion of the privacy of an individual, other than the applicant or the person on whose behalf an application has, with proper authority, been made.
iii. Information relating to salary increment of civil servants would amount to a violation of their right to privacy.
iv. There is no requirement in law for a public body to provide a rationale for its decision. The 1 st Respondent, as established in the Constitution, and operationalized by statute, has the constitutional mandate to review and set the salaries and benefits of state and public officers.
v. The question of public participation has been extensively litigated upon. The parameters set is for the proposed policy or legislation to be presented to the public, and opportunity given for the members of the public to ventilate on the same.
vi. It is not in dispute that the information was availed to the public and views invited from the members of the public in line with the requirements for public participation.
vii. The instant Petition is based on a misunderstanding of the letter and the spirit of the law on access to information and by extension, public participation.
viii. The question of retrospective application of the law has been widely litigated upon. Despite the general rule that retrospective application of the law is prohibited, the Courts have provided for the exception as in the case of Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd &2 Others, SCK APP. No. 2 of 2011 (2012) eKLR where it was held that:
“[61] As for non-criminal legislation, the general rule is that all statutes other than those which are merely declaratory or which relate only to matters of procedure or evidence are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature. (Halsburys Laws of England, 4th Edition Vol.44 at page 570). A retroactive law is not unconstitutional unless it: (i) is in the nature of a bill of attainder; (ii) impairs the obligation under contracts; (iii) divests vested rights; or (iv) is constitutionally forbidden.”
ix. The instant scenario allows for the gazette notices to be applied from a date earlier that the date of the actual gazettement.
x. From the above, it is clear that the Petition is premised on a clear misapplication of the law by the Petitioner.
Petitioners’ Submissions
35. The Petitioner filed submissions dated 10 th July 2024 in support of his Petition.
36. On public participation, the Petitioner submitted that the 1 st Respondent is required to undertake this exercise as envisaged under Article 10(2) (a) and 201 of the Constitution in line with its mandate under Article 230(4)(a) of the Constitution. Reliance was placed in British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties)[Petition No. 5 of 2017] where the Supreme Court guided as follows:
“Public participation has been entrenched in our Constitution as a national value and a principle of governance under Article 10 of the Constitution and is binding on all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets the Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. As aptly stated by the Appellate Court, public participation is anchored on the principle of the Sovereignty of the People “that permeates the Constitution and in accordance with Article 1(4) of the Constitution is exercised at both national and county levels”… Since the promulgation of the Constitution 2010, the question of the rationale, scope and application of public participation as a principle of governance has been subject of numerous decisions by the courts. The High Court in this matter appraised itself of the various decisions on the same, which appraisal the Court of Appeal readily endorsed. In the Matter of the National Land Commission, the Supreme Court placed the principle of public participation at the core of the concept of checks and balances in governance in the execution of their functions by the various arms of government, when we stated:
“[308] The conditioning medium within which these functions have to be conducted, is constituted by the national values and principles outlined in Article 10 of the Constitution: in particular, the rule of law; participation of the people; equity; inclusiveness; human rights; non-discrimination; good governance; integrity; transparency and accountability. It is to be noted that, the very essence of checks-and-balances touches on the principles of public participation, inclusiveness, integrity, accountability and transparency; and the performance of the constitutional and statutory functions is to be in line with values of integrity, transparency, good governance and accountability…”
37. The Petitioner submitted that the 1 st Respondent bears the burden of proving under Section 107 of the Evidence Act, that it complied with the Constitution, including its duty to facilitate public participation, when it set the impugned remunerations and benefits. According to him, the 1 st Respondent failed to subject its proposals to any form public participation. He added that the 1 st Respondent had not provided any evidence to demonstrate that it carried out any public participation before it published the impugned constitutional instruments. Equally, he argued that no evidence was adduced to show that it invited the public to give their views. Likewise, that no report was issued on the outcome of any submissions received from the public or any information on what impact, representations from the public had on its final decision. In his summation, the 1 st Respondent indeed failed to demonstrate that it actually facilitated public participation rendering its impugned instruments unconstitutional, null and void, ab initio.
38. Moreover, he stressed that whereas the powers donated to the 1 st Respondent under Article 230(4)(a) are exercisable without the direction or control of any person or authority, they must still be exercised in accordance with the Constitution. Reliance was placed in Ombati v Chief Justice & President of the Supreme Court & another; Kenya National Human Rights and Equality Commission & 2 others (Interested Party) (Petition E242 of 2022) [2022] KEHC 11630 (KLR) where it was held that:
“Regardless of the nature of the impugned Rules and the fact that the power to make them flows directly from the Constitution, the letter and spirit of the Constitution must be upheld in the process of enactment….the rules cannot make provisions which are in conflict with the national values and principles of governance or run contra the Bill of Rights or even usurp the powers of other constitutional entities. The emphasis here is that the any rules made by any entity must be in conformity with the Constitution.”
39. On whether the 1 st Respondent complied with Article 230(5) of the Constitution in setting the impugned remuneration and benefits for state officers, the Petitioner submitted that it did not. The Petitioner reiterating the contents of his affidavit noted that the 1 st Respondent had in fact admitted that the current public compensation bill is unconstitutional as it breaches the maximum target set by Section 15(2) (b), Public Finance Management Act and Regulation 26(1)(a) of the Public Finance Management (National Government) Regulations, 2015.Essentially, this means fewer resources are available to fund public services.
40. The Petitioner added that the 1 st Respondent also included, in the increase, previously-unannounced additions, without offering any justification for the same. The Petitioner emphasized that the 1 st Respondent has a duty to abide by the Constitution, including when fulfilling its functions.
41. On compliance with Article 249(2) of the Constitution, the Petitioner submitted that the 1 st Respondent had also violated this provision by surrendering its independence to the control of the President. He asserted that the 1 st Respondent had not provided any rational explanation why, those of the President and the Deputy President were, over the period covered, retained at the level set in the Kenya Gazette Notice No. 8792 of 27 th July 2022.
42. To buttress this issue, reliance was placed in the Matter of Interim Independent Electoral Commission [2011] eKLR where it was held that:
“It is a matter of which we take judicial notice, that the real purpose of the “independence clause”, with regard to Commissions and independent offices established under the Constitution, was to provide a safeguard against undue interference with such Commissions or offices, by other persons, or other institutions of government. Such a provision was incorporated in the Constitution as an antidote, in the light of regrettable memories of an all-powerful Presidency that, since Independence in 1963, had emasculated other arms of government, even as it irreparably trespassed upon the fundamental rights and freedoms of the individual. The Constitution established the several independent Commissions, alongside the Judicial Branch, entrusting to them special governance mandates of critical importance in the new dispensation; they are the custodians of the fundamental ingredients of democracy, such as rule of law, integrity, transparency, human rights, and public participation. The several independent Commissions and offices are intended to serve as ‘people’s watchdogs’ and, to perform this role effectively, they must operate without improper influences, fear or favour: this, indeed, is the purpose of the “independence clause”.
43. On the retrospective application of the impugned instruments, the Petitioner submitted that the 1 st Respondent cannot cause the impugned constitutional instruments to commence on a date before they were published in the Kenya Gazette. In his view, there is no provision in the Constitution that allows back-dating of constitutional instruments to a date before the decision was made and so the same is offensive to Article 10(2) and 201 of the Constitution.
44. Reliance was placed in Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others [2014] eKLR where it was held that:
“The Kenya Gazette is the official bulletin of the Government of Kenya. It announces to all and sundry the decisions of the Government. The only formal way the SRC could have conveyed its decision on the remuneration and benefits of state officers was through the Kenya Gazette.
85. The position and place of the Kenya Gazette in the affairs of this nation was addressed by the Court of Appeal in the case of Ali Hassan Joho & Another v. Suleiman Said Shahbal & 2 Others Court of Appeal Civil Appeal No 12 of 2013 thus:-
[24.] The Kenya Gazette is an official newspaper of the government in which official matters including official notices are published. The Gazette has evidentiary character. Section 68 of the interpretation and General Provisions Act provides:- “The production of a copy of the Gazette containing a written law or notice, or of copy of a written law or notice purporting to be printed by the Government Printer shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor of the written law or notice.”
Section 85 of the Evidence Act has identical provision………. The elections are matters of great public importance and the requirement that the result of elections be declared or published in the Gazette does not derogate from the intendment of section 76(1)(a). The requirement of Gazettement is required, among other things, to give the declared results a seal of certainty finality, and legality.”
45. The Petitioner further argued that by stating, in July 2022, that any changes in the remuneration and benefits payable to State officers for Financial Years 2023/2024 and 2024/2025 would be notified on or before 1 st July 2023, the 1 st Respondent created a legitimate expectation that it would comply with the Constitution. As such, failure to do this and instead, setting those remuneration and benefits on 9 th August 2023 and then backdating them to 1 st July 2023, the 1 st Respondent was a violation of the principles of transparency, accountability and good governance as set out in Constitution.
46. Reliance was placed in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR where it was held that:
“An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation…”
47. To this end, the Petitioner urged the Court to issue orders, in the form of a structural interdict as an appropriate relief to remedy the violation of the Constitution as was recognized by the Supreme Court in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)[2021] eKLR .
1 st Respondent’s Submissions
48. The 1 st Respondent through its Counsel, James Sitienei filed submissions dated 20 th November 2024 and underscored the issues for discussion as: whether the 1 st Respondent undertook adequate public participation prior to setting the impugned remuneration and benefits for State officers, whether the 1 st Respondent complied with the constitutional and statutory principles in setting the remuneration and benefits, whether remuneration and benefits structures are constitutional instruments and whether implementation thereof can be back dated and whether the 1 st Respondent acted contrary to Article 249 (2) of the Constitution .
49. On the first issue, Counsel noted that this principle was appreciated by the Court in William Odhiambo Ramogi & 3 Others vs. The Attorney General & Others (2020) eKLR as follows:
“According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process. Public participation therefore refers to the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them. The processes may take different forms.”
50. Like dependence was placed in Mui Coal Basin Local Community & 15 Others v Permanent Secretary Minis
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