Pursuant to leave granted on 5 th September 2024, by Ngaah J, the Ex parte Applicant, the Premier Bar Association, the Law Society of Kenya filed their substantive motion dated 12 th September 2024. The application is brought under Section 8 of the Law Reform Act and Order 53 Rule 3(1) and Rule 4 of the Civil Procedure Rules.
The application seeks an order of Certiorari to bring into the High Court for purposes of quashing the decision of the 1 st Respondent, The National Treasury and Economic Planning, issued via the Treasury Circular No. 8/2024 on 5 th July 2024, an order of Prohibition restraining the said 1 st Respondent from enforcing and/or implementing the said circular and an order of Mandamus compelling the 1 st Respondent to reinstate the budget for subscription fees and levies to professional bodies.
The application is accompanied by a statement of facts dated 3 rd September 2024 and a verifying affidavit sworn by Florence Muturi, the Chief Executive Officer of the Ex parte Applicant on 3 rd September 2024.
The Ex parte Applicant’s case is that on 28 th June 2024, the National Treasury and Economic Planning issued Circular No 6/2024, wherein it gave directives limiting the spending of the Financial Year 2024/25 to 15% of the approved budget until the approval of the Financial Year 2024/25 Supplementary Estimates No.1.
On 5 th July 2024, the 1 st Respondent it is stated, issued another Circular No. 8/2024 to all Accounting Officers/Principal Secretaries of all Ministries, Departments, and Agencies, stipulating guidelines on the revision of Estimates of Revenue and Expenditure for the Financial Year 2024/ 25.
In the said Circular, the 1 st Respondent is said to have issued directives that the Government would control expenditures by initiating austerity measures on the provisions for operations and maintenance, which would be undertaken in, among others, all Ministries, Departments, and State Agencies.
According to the Applicant, in its quest to rationalize the Financial Year 2024/25 Recurrent Budget, the 1 st Respondent, via Circular No. 8/2024, imposed a 100% cut on Membership fees, Dues, and Subscriptions to Professional and Trade Bodies, which, in effect, gravely affects it and its members.
The Applicant also states that the new directives by the 1 st Respondent are irrational and discriminatory as they were imposed on the Applicant's members without public participation, contrary to Article 10 of the Constitution of Kenya and sections 27 and 28 of the Advocates Act, Cap 16 of the Laws of Kenya and thus amounts to a forceful variation of their contracts without their involvement.
It is the Applicant’s case that the new directives were issued unilaterally, without any clear communication of the right to appeal, leaving the affected parties with no recourse to challenge the decision. The Applicant also states that the 1 st Respondent’s actions have effectively forced these directives upon its members, compelling them to accept the terms without any meaningful dialogue or consideration of their concerns.
The Applicant avers that all in-house counsel working in Ministries, State Departments, and Agencies stand to be affected by the new directives, which will force them to pay for their own Practicing Licence fees while employed in the Public Service.
According to the Applicant, most in-house counsel will be unable to pay the annual fees to renew their practising certificate as from 2025 if the directives are implemented leading to the inevitable high rates of non-compliant advocates to the detriment of the public institutions whose interests will be at stake should it happen.
The new directives according to the Applicant, amount to a breach of legitimate expectations of individual in-house counsel who work in various Ministries, Departments and Agencies.
The Ex parte Applicant’s further case is that it has attempted to resolve this matter amicably as is evidenced by their letter dated 22 nd August 2024 in line with fair administrative action to no avail.
The Respondent’s Response
The 1 st Respondent filed a Replying Affidavit sworn by Dr. Chris K. Kiptoo, the Principal Secretary in the 1 st Respondent Ministry on 27 th March 2025.
The 1 st Respondent contends that the rejection of the Finance Bill 2024 resulted to a financing gap of Kshs.346 billion which was meant to finance the FY 2024/2025 budget estimates and as a result, this necessitated rationalization of the budget by similar amount to close the financing gap.
That the National Treasury vide Circular NO. 8/2024 issued guidelines to all Ministries, Departments and Agencies on the revision of the FY 2024/25 Budget Estimates. That the guidelines provided the areas of budget cuts including the percentage cut. Among the items identified was Membership Fees, Dues and Subscriptions to professional and Trade Bodies.
Dr. Kiptoo deposes that the budgetary process is consultative and involves many stakeholders who enrich the process through providing input to the process. Further, that the National Treasury Circular provides guidelines to Ministries, Departments and Agencies on how to process budgets including having meetings with them. It is his disposition that the Ministries, Departments and Agencies were consulted before the preparation and finalization of the supplementary estimates.
Submissions
The application was canvassed by way of written submissions, with the Ex parte Applicant filling its submissions dated 24 th April 2025.in the said submissions, the exparte applicant argues that Article 47(1) of the Constitution of Kenya, 2010 and section 4(1) of the Fair Administrative Action Act CAP 71 provide that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.
Similarly, that section 7(2) of the Fair Administrative Action Act CAP 7L Laws of Kenya provides for the grounds for judicial review. These include failure to give the affected people an opportunity to be heard, procedural unfairness, unreasonableness, legitimate expectation among others.
In light of the foregoing, the ex parte Applicant contends that its members were entitled to a decision that was lawful, reasonable and procedurally fair.
It is submitted that the 1 st Respondent’s decision was procedurally unfair and that Section 5(1) of the Fair Administrative Action Act provides for the procedure to be followed in the event a decision is to be made affecting a group of people. The Applicant submits that the 1 st Respondent did not adhere to any of the steps highlighted under section 5(1) of the Fair Administrative Action Act.
The Applicant also submits that the 1 st Respondent has failed to adduce any proof that Ministries, Departments and Agencies (MDAs) were consulted before this decision was made. That in any case, consultations with the MDAs does not count as public participation.
The Applicant relies on the case of Republic versus County Government of Kiambu and Exparte Robert Gakuru & Jamofastar Welfare Association, Judicial Review Case No. 434 of 2015 where the court observed that public participation is not a mere cosmetic venture or a public relations exercise.
It also relies on the case of Zachariah Wagunza & another versus Office of the Registrar Academic Kenyatta University & 2 others [2013] eKLR where the court relied on the case of Municipal Council of Mombasa vs. Republic & Umoja Consultants Limited Civil Appeal No. 185 of 2001 where the court is said to have stated that Judicial Review concerns itself with whether the affected party was given an opportunity to be heard.
For the definition of legitimate expectation, the Ex parte Applicant relies on the case of Republic vs. County Director Physical Planning Department Kiambu County, County Planning Technical Committee Kiambu County, Physical Planning Liason Committee Kiambu County, The County Government of Kiambu and Shainaz Shamshudin Jamal, Munira Sumar Miscellaneous Civil Application No. 126 of 2016 where the court while defining legitimate expectation observed that as per the definition provided under Halsbury’s Laws of England 4 th Edition , a legitimate expectation arises from a public authority’s representation, promise, or consistent practice, and is protected by courts to uphold fairness, predictability, and certainty.
The Ex parte Applicant submits that its members have consistently had their membership fees dues, and subscriptions to professional and trade bodies paid by their employers and that consequently, the 1 st Respondent’s decision to have a 100% cut is an affront to their legitimate expectations.
The Applicant also places reliance on the case of Republic versus Cabinet Secretary, Ministry of Health and Oscar Kambona and Kenya Nutritionists & Dieticians Institute, Miscellaneous Application 329 of 2019 where the court relied on Council of Civil Service Unions versus Minister for the Civil Service (1985) AC. 374, 410 for what constitutes illegality as a ground for judicial review.
The Ex parte Applicant further submits that the 1 st Respondent contravened the provisions of section 10(5) of the Employment Act which requires that any attempt to revise a contract must be done in consultation with an employee and that notice of such change must be in writing.
It is submitted that the 1 st Respondent, in its decision issued vide Circular No. 8/2024, altered the employment terms of the members of the Ex parte Applicant without giving any regard to their views and that this action was outside its statutory mandate as only the employer of the Ex parte Applicant’s members can cause a variation of the employment terms.
In conclusion, the Ex parte Applicant submits that for the foregoing reasons, the 1 st Respondent’s decision was irrational, procedurally unfair, illegal, irrational, devoid of public participation, with no opportunity to appeal, thereby offending the Ex part Applicant’s members’ legitimate expectations and ultra vires to its statutory mandate.
The Respondents did not file any written submissions despite the court having granted them leave to file the same on 28 th April 2025.
Analysis and Determination
I have considered the application and the accompanying affidavit, statutory statement and annexures which include the impugned directive. I have also considered the submissions and arguments in support of the application.
The issues arising for determination are:
Whether the 1 st Respondent’s decision to eliminate budgetary allocations for professional membership fees via Treasury Circular No. 8/2024 was lawful and required adherence to the principles and values of public participation espoused in Article 10 of the Constitution.
Whether the impugned directive violated the legitimate expectations and constitutional rights of the Applicant’s members to fair administrative action.
Whether the Applicant is entitled to the judicial review remedies of certiorari, prohibition, and mandamus.
What orders should this Court make?
On whether the 1 st Respondent’s decision to eliminate budgetary allocations for professional membership fees via Treasury Circular No. 8/2024 was lawful and required adherence to the principles and values of public participation espoused in Article 10 of the Constitution.
To resolve the above issue, it is important to first and foremost, appreciate the role of the National Treasury in budget and expenditure rationalization in Kenya. I will therefore summarize that role here in order to determine whether the decision in the circular was lawful and procedurally fair.
The National Treasury plays a central role in the management of public finances in Kenya, particularly in the rationalization of budget and expenditure. Its powers and responsibilities are primarily grounded in the Constitution of Kenya, 2010 and the Public Finance Management Act, No. 18 of 2012 (PFMA).
Under the Constitutional, Article 201 provides that public finance shall be managed in a manner that promotes transparency, accountability, and effective use of resources.
Under Article 225(1), the National Treasury is responsible for ensuring that expenditure of public money is lawful and effective.
The stator role of the National Treasury can be found in the Public Finance Management Act, (PFMA), 2012. The Public Finance Management Act outlines the specific functions and powers of the National Treasury, including:
a) Formulation of Budget Policy. Under Section 12(1)(a) & (b), the National Treasury is responsible for managing the national government’s budget preparation process and promoting transparency and accountability in public finance.
b) Expenditure Control and Rationalization- Section 13 of the Act mandates the National Treasury to promote efficient, effective, and economic use of public resources.
Section 14(1)(a) of the Act authorizes the Cabinet Secretary for the National Treasury to issue guidelines to MDAs on budget implementation and financial management.
Section 15(2)(b) of the Act allows the Treasury to suspend or limit expenditures or commitments when necessary due to insufficient resources.
c) Budget Execution Oversight. Under Section 39(1) of the Act, the Treasury ensures that funds are spent according to the law and that budget implementation is aligned with government priorities.
d) Power to Issue Circulars: The National Treasury may issue circulars, guidelines and instructions, including on rationalization of expenditures, such as freezing or limiting specific spending (e.g., training, foreign travel, or professional fees) to ensure fiscal discipline.
In practice, budget rationalization refers to the reprioritization, restriction or reduction of expenditures to align with available resources and national development priorities. In this regard, the National Treasury can identify non-core or non-essential spending; reallocate funds to priority sectors; or issue circulars or directives limiting certain categories of expenditure (e.g., professional body subscriptions, hospitality, and travel).
Such decisions are typically guided by the Medium-Term Expenditure Framework (MTEF), resource ceilings issued to MDAs, recommendations of Pending Bills Committees or special audit reports.
It therefore follows that the National Treasury’s mandate to rationalize expenditure is a legally grounded function meant to promote fiscal sustainability, efficiency and alignment with national priorities.
While the Treasury has broad powers under the PFMA, these powers must be exercised within the bounds of the Constitution, particularly respecting the principles and values espoused in Article 10 and the Bill of Rights. These values, principles and or rights include transparency, consultation and fair administrative action.
The impugned circular, dated limits spending and is part of an expenditure rationalization effort by the National Treasury. It directed those public entities shall during the financial year 2024/2025, not pay for professional memberships and subscriptions for their officers. The Treasury cited the need to curb non-essential spending due to budgetary constraints occasioned by the rejection of the Finance Bill, 2024 Act, which led to a significant budget deficit amounting to Kshs. 346 billion, and as a result, austerity measures had to be taken and implemented to rationalize public expenditure.
The Applicant contends that this circular undermines legal compliance by public officers who are legally required to be in good standing with professional bodies such as legal practitioners. Further, that it tends to unilaterally vary the terms of employment of those employees contrary to section 10 (5) of the Employment Act. I must however refrain from determining issues employment and labour relations raised in the application as those are issues that are beyond the jurisdiction of this Court. This Court is expressly barred by Article 165(5) of the Constitution from hearing and determining disputes relating to employment and labour relations.
That said, as I have stated above, the National Treasury is mandated by law to issue circulars and even limit expenditure on what it considers non-essential services having regard to the financial situation in the country.
Historically, government departments have paid these fees and subscriptions to professional bodies for their employees, recognizing them as essential to enabling officers to perform their statutory functions lawfully.
This Court therefore does acknowledge the statutory and constitutional mandate and role of the National Treasury and the necessity of implementing such austerity measures due to the significant fiscal shortfall.
The applicant cites Articles 10 and 47 of the Constitution and argues that the impugned action was unilateral and lacked any meaningful public participation, disrupted a legitimate expectation of government-paid compliance with statutory bodies and was irrational and unfair, breaching public officers’ right to fair administrative action.
Therefor on whether the 1st Respondent’s decision to eliminate budgetary allocations for professional membership fees and subscriptions via Treasury Circular No. 8/2024 was lawful and procedurally fair, there is no dispute that the National Treasury has the legal authority to rationalize government spending under the PFMA, 2012 including issuing expenditure guidance. The Treasury may reprioritize allocations in light of macroeconomic constraints.
However, statutory discretion must be exercised in conformity with constitutional values and principles. As has been repeatedly stated by courts in this country, discretion must not be abused or exercised arbitrarily.
It was incumbent upon the National Treasury to, in accordance with constitutional dictates, conduct public participation through stakeholder engagement and consultations prior to issuing directives like the one impugned herein.
While the 1 st Respondent claims to have held budget consultations with Ministries, Departments and Agencies, no evidence has been provided to demonstrate that the Ex parte Applicant or other directly affected professionals and the professional bodies that those professionals subscribe to and pay subscription fees on an annual basis were consulted before Circular No. 8/2024 was issued. It is equally surprising that the 1 st respondent has not outlined its statutory mandate in all these matters complained of. It is not enough to say that there was budgetary constrains and or deficit. What would be the legal basis for such decisions?
Public participation is a core national value under Article 10 of the Constitution. When an administrative decision impacts specific groups of people especially professionals, by modifying established practices or entitlements, the decision-maker has a duty to conduct focused and meaningful consultations with those affected, even if no consensus is obtained from the said public participation exercise.
Article 10(2)(a) of the Constitution enshrines public participation as a binding national value. The Court in Doctors for Life International v Speaker of the National Assembly (CCT 12/05) [2006] ZACC 11 explained that public participation ensures decisions reflect public interest and are not arbitrary.
The High Court in Robert N. Gakuru & Others v Governor, Kiambu County & 3 Others [2014] eKLR stated that “public participation must be real and not illusory... meaningful engagement with the citizenry is essential.”
In National Assembly & another v Okoiti & 55 others (Civil Appeal E003 of 2023 & E016, E021, E049, E064 & E080 of 2024 (Consolidated)) [2024] KECA 876 (KLR) (31 July 2024) (Judgment) the Court of appeal stated as follow regarding intervention by the High Court in matters policy:
“H. Whether the trial Court abdicated its jurisdiction by holding that it cannot intervene on policy decisions.
209. Mr. Ochiel learned counsel for the 15th, 16th, 17th ,18th, 19th and 22nd respondents faulted the learned judges for misinterpreting Articles 10 and 165(3) on its jurisdiction thereby abdicating its jurisdiction to test the constitutionality of “anything” including policy said to infringe the Constitution in holding that the challenged taxes were constitutional because they were “matters within the competence of the legislature and reflected the policy choices of the national government” and were “governed by policy”.
210. Mr. Murugara urged that the court lacks jurisdiction to interfere with tax legislation based on the merger of policy and legislation of public finance principles, equal protection of law, fairness and judicial authority, since the rate of taxation is a policy decision that rests with the legislature. In support of the finding by the learned judges of the High Court, counsel cited the finding in Ndora Stephen vs. Minister for Education & 2 Others (supra) where the High Court held that formulation of policy and implementation thereof were within the province of the executive.
211. The learned judges of the High Court held as follows:
“ 172. Section 26 of the Finance Act amended the third schedule of the Income Tax Act to introduce new tax bands. In addition, section 7 of the Act amended section 10 of the Income Tax Act relating to withholding tax. The petitioners have not demonstrated how these amendments affect specific provisions of the Constitution. In any event, we hold that these are matters related to tax policy and administration…
Conclusions
220. Having considered, the matters placed before us for determination, we now conclude as follows:
i
…
ii
…
iii
….
(c) That, section 26 of the Finance Act, 2023 which amends the third schedule of the Income Tax Act to introduce new tax bands and section 7 of the Act that amends section 10 of the Income Tax Act in regard to withholding tax are matters related to tax policy and administration and thus not unconstitutional.”
212. We have no doubt that the State has the constitutional obligation to collect taxes, and that the National Assembly therefore has the constitutional mandate to legislate to this effect pursuant to Article 209 (1) which empowers the national government to impose taxes. However, Article 165 (3) (d) (i) & (ii) confers vast jurisdiction to the High Court to hear any question respecting the interpretation of the Constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the Constitution and also the question whether anything said to be done under the authority of the Constitution or of any law is in consistent with, or in contravention of, the Constitution. The above provision is wide enough to cover a policy or decision made by a State organ or public body.
This Court in the Pevans case held:
“Where the Constitution had reposed specific functions in an institution or organs of State, the courts must give those institutions or organs sufficient leeway to discharge their mandates and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution….”
214. Accordingly, we agree with Mr. Ochiel’s argument that the High Court in the impugned holding misinterpreted Articles 10 and 165 (3) on its jurisdiction effectively abdicating its jurisdiction to test the constitutionality of “anything” including policy said to infringe the Constitution. It is only when a state organ is executing policy within the law that the courts will be slow to intervene. Accordingly, the High Court erred in making a blanket statement suggesting that courts ought not to intervene in all policy matters.” [emphasis added]
Besides change of policy, I find that the circular impacted the statutory compliance obligations of public servants. Advocates working for state agencies are not exempt from paying for annual practicing licenses. The employers pay such fees for annual practicing certificates on behalf of their professional employees. The employees would not be eligible to eve execute legal documents such as commissioning of oaths or appearing in court or drafting pleadings as advocates if their practicing certificates are not renewed for the year. They would as a consequence be treated as unqualified persons and therefore lack the capacity to represent the agencies in legal matters. These are some of the issues that would have arisen during public participation process before eliminating such fees.
The failure to engage professional bodies or affected MDAs prior to the issuance of the circular was a breach of Article 10 and Section 4 of the Fair Administrative Action Act.
The Supreme Court in the case of British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) [2019] KESC 15 (KLR ) held as follows regarding public participation as a constitutional value:
“Public participation and consultation was a living constitutional principle that went to the constitutional tenet of the sovereignty of the people. In line with the court’s mandate under section 3 of the Supreme Court Act, the following were the guiding principles for public participation:
As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance.
The public officer and/or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to the constitutional principle using reasonable means.
Public participation had to be real and not illusory. It was not a cosmetic, public relations act or a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There was need for both quantitative and qualitative components in public participation.
Public participation was not an abstract notion; it must be purposive and meaningful.
Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness could be determined on a case to case basis.
Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
Allegations of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis.
“Components of meaningful public participation included the following;
clarity of the subject matter for the public to understand;
structures and processes (medium of engagement) of participation that were clear and simple;
opportunity for balanced influence from the public in general;
commitment to the process;
inclusive and effective representation;
integrity and transparency of the process;
capacity to engage on the part of the public, including that the public had to be first sensitized on the subject matter.”
Similarly, in British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others [2017] KECA 763 (KLR) the Court of Appeal observed thus:
“46. The procedure adopted in making the Regulations has been challenged to the extent that there was no consultation or adequate public participation. In this regard, Article 10 of the Constitution identifies inclusiveness, transparency, accountability and public participation as key values and principles of governance that bind all State organs, State officers and public officers in the interpretation of the Constitution or enactment or interpretation of any law……..
“47. It is clear that since the promulgation of the Constitution of Kenya 2010, the concept of public participation and consultation has been entrenched. Indeed, the concept is consistent with the principle of 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. It is thus not surprising that the courts have addressed the concept of Public participation in enactment of legislation, severally since the promulgation of the Constitution of Kenya 2010.”
The Court in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR also noted that:
“Public participation is one of the national values and principles in our constitution which must be observed by all persons; state organs and public officers in the exercise of their responsibilities. Article 10 (1) of the constitution states that the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution ; (b) enacts, applies or interprets any law; or makes or implements public policy decisions. .And according to Article 10 (2), the national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and “participation of the people.”
The Court of Appeal in Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR noted that:
“…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution
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The application seeks an order of Certiorari to bring into the High Court for purposes of quashing the decision of the 1 st Respondent, The National Treasury and Economic Planning, issued via the Treasury Circular No. 8/2024 on 5 th July 2024, an order of Prohibition restraining the said 1 st Respondent from enforcing and/or implementing the said circular and an order of Mandamus compelling the 1 st Respondent to reinstate the budget for subscription fees and levies to professional bodies.
The application is accompanied by a statement of facts dated 3 rd September 2024 and a verifying affidavit sworn by Florence Muturi, the Chief Executive Officer of the Ex parte Applicant on 3 rd September 2024.
The Ex parte Applicant’s case is that on 28 th June 2024, the National Treasury and Economic Planning issued Circular No 6/2024, wherein it gave directives limiting the spending of the Financial Year 2024/25 to 15% of the approved budget until the approval of the Financial Year 2024/25 Supplementary Estimates No.1.
On 5 th July 2024, the 1 st Respondent it is stated, issued another Circular No. 8/2024 to all Accounting Officers/Principal Secretaries of all Ministries, Departments, and Agencies, stipulating guidelines on the revision of Estimates of Revenue and Expenditure for the Financial Year 2024/ 25.
In the said Circular, the 1 st Respondent is said to have issued directives that the Government would control expenditures by initiating austerity measures on the provisions for operations and maintenance, which would be undertaken in, among others, all Ministries, Departments, and State Agencies.
According to the Applicant, in its quest to rationalize the Financial Year 2024/25 Recurrent Budget, the 1 st Respondent, via Circular No. 8/2024, imposed a 100% cut on Membership fees, Dues, and Subscriptions to Professional and Trade Bodies, which, in effect, gravely affects it and its members.
The Applicant also states that the new directives by the 1 st Respondent are irrational and discriminatory as they were imposed on the Applicant's members without public participation, contrary to Article 10 of the Constitution of Kenya and sections 27 and 28 of the Advocates Act, Cap 16 of the Laws of Kenya and thus amounts to a forceful variation of their contracts without their involvement.
It is the Applicant’s case that the new directives were issued unilaterally, without any clear communication of the right to appeal, leaving the affected parties with no recourse to challenge the decision. The Applicant also states that the 1 st Respondent’s actions have effectively forced these directives upon its members, compelling them to accept the terms without any meaningful dialogue or consideration of their concerns.
The Applicant avers that all in-house counsel working in Ministries, State Departments, and Agencies stand to be affected by the new directives, which will force them to pay for their own Practicing Licence fees while employed in the Public Service.
According to the Applicant, most in-house counsel will be unable to pay the annual fees to renew their practising certificate as from 2025 if the directives are implemented leading to the inevitable high rates of non-compliant advocates to the detriment of the public institutions whose interests will be at stake should it happen.
The new directives according to the Applicant, amount to a breach of legitimate expectations of individual in-house counsel who work in various Ministries, Departments and Agencies.
The Ex parte Applicant’s further case is that it has attempted to resolve this matter amicably as is evidenced by their letter dated 22 nd August 2024 in line with fair administrative action to no avail.
The Respondent’s Response
The 1 st Respondent filed a Replying Affidavit sworn by Dr. Chris K. Kiptoo, the Principal Secretary in the 1 st Respondent Ministry on 27 th March 2025.
The 1 st Respondent contends that the rejection of the Finance Bill 2024 resulted to a financing gap of Kshs.346 billion which was meant to finance the FY 2024/2025 budget estimates and as a result, this necessitated rationalization of the budget by similar amount to close the financing gap.
That the National Treasury vide Circular NO. 8/2024 issued guidelines to all Ministries, Departments and Agencies on the revision of the FY 2024/25 Budget Estimates. That the guidelines provided the areas of budget cuts including the percentage cut. Among the items identified was Membership Fees, Dues and Subscriptions to professional and Trade Bodies.
Dr. Kiptoo deposes that the budgetary process is consultative and involves many stakeholders who enrich the process through providing input to the process. Further, that the National Treasury Circular provides guidelines to Ministries, Departments and Agencies on how to process budgets including having meetings with them. It is his disposition that the Ministries, Departments and Agencies were consulted before the preparation and finalization of the supplementary estimates.
Submissions
The application was canvassed by way of written submissions, with the Ex parte Applicant filling its submissions dated 24 th April 2025.in the said submissions, the exparte applicant argues that Article 47(1) of the Constitution of Kenya, 2010 and section 4(1) of the Fair Administrative Action Act CAP 71 provide that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair.
Similarly, that section 7(2) of the Fair Administrative Action Act CAP 7L Laws of Kenya provides for the grounds for judicial review. These include failure to give the affected people an opportunity to be heard, procedural unfairness, unreasonableness, legitimate expectation among others.
In light of the foregoing, the ex parte Applicant contends that its members were entitled to a decision that was lawful, reasonable and procedurally fair.
It is submitted that the 1 st Respondent’s decision was procedurally unfair and that Section 5(1) of the Fair Administrative Action Act provides for the procedure to be followed in the event a decision is to be made affecting a group of people. The Applicant submits that the 1 st Respondent did not adhere to any of the steps highlighted under section 5(1) of the Fair Administrative Action Act.
The Applicant also submits that the 1 st Respondent has failed to adduce any proof that Ministries, Departments and Agencies (MDAs) were consulted before this decision was made. That in any case, consultations with the MDAs does not count as public participation.
The Applicant relies on the case of Republic versus County Government of Kiambu and Exparte Robert Gakuru & Jamofastar Welfare Association, Judicial Review Case No. 434 of 2015 where the court observed that public participation is not a mere cosmetic venture or a public relations exercise.
It also relies on the case of Zachariah Wagunza & another versus Office of the Registrar Academic Kenyatta University & 2 others [2013] eKLR where the court relied on the case of Municipal Council of Mombasa vs. Republic & Umoja Consultants Limited Civil Appeal No. 185 of 2001 where the court is said to have stated that Judicial Review concerns itself with whether the affected party was given an opportunity to be heard.
For the definition of legitimate expectation, the Ex parte Applicant relies on the case of Republic vs. County Director Physical Planning Department Kiambu County, County Planning Technical Committee Kiambu County, Physical Planning Liason Committee Kiambu County, The County Government of Kiambu and Shainaz Shamshudin Jamal, Munira Sumar Miscellaneous Civil Application No. 126 of 2016 where the court while defining legitimate expectation observed that as per the definition provided under Halsbury’s Laws of England 4 th Edition , a legitimate expectation arises from a public authority’s representation, promise, or consistent practice, and is protected by courts to uphold fairness, predictability, and certainty.
The Ex parte Applicant submits that its members have consistently had their membership fees dues, and subscriptions to professional and trade bodies paid by their employers and that consequently, the 1 st Respondent’s decision to have a 100% cut is an affront to their legitimate expectations.
The Applicant also places reliance on the case of Republic versus Cabinet Secretary, Ministry of Health and Oscar Kambona and Kenya Nutritionists & Dieticians Institute, Miscellaneous Application 329 of 2019 where the court relied on Council of Civil Service Unions versus Minister for the Civil Service (1985) AC. 374, 410 for what constitutes illegality as a ground for judicial review.
The Ex parte Applicant further submits that the 1 st Respondent contravened the provisions of section 10(5) of the Employment Act which requires that any attempt to revise a contract must be done in consultation with an employee and that notice of such change must be in writing.
It is submitted that the 1 st Respondent, in its decision issued vide Circular No. 8/2024, altered the employment terms of the members of the Ex parte Applicant without giving any regard to their views and that this action was outside its statutory mandate as only the employer of the Ex parte Applicant’s members can cause a variation of the employment terms.
In conclusion, the Ex parte Applicant submits that for the foregoing reasons, the 1 st Respondent’s decision was irrational, procedurally unfair, illegal, irrational, devoid of public participation, with no opportunity to appeal, thereby offending the Ex part Applicant’s members’ legitimate expectations and ultra vires to its statutory mandate.
The Respondents did not file any written submissions despite the court having granted them leave to file the same on 28 th April 2025.
Analysis and Determination
I have considered the application and the accompanying affidavit, statutory statement and annexures which include the impugned directive. I have also considered the submissions and arguments in support of the application.
The issues arising for determination are:
Whether the 1 st Respondent’s decision to eliminate budgetary allocations for professional membership fees via Treasury Circular No. 8/2024 was lawful and required adherence to the principles and values of public participation espoused in Article 10 of the Constitution.
Whether the impugned directive violated the legitimate expectations and constitutional rights of the Applicant’s members to fair administrative action.
Whether the Applicant is entitled to the judicial review remedies of certiorari, prohibition, and mandamus.
What orders should this Court make?
On whether the 1 st Respondent’s decision to eliminate budgetary allocations for professional membership fees via Treasury Circular No. 8/2024 was lawful and required adherence to the principles and values of public participation espoused in Article 10 of the Constitution.
To resolve the above issue, it is important to first and foremost, appreciate the role of the National Treasury in budget and expenditure rationalization in Kenya. I will therefore summarize that role here in order to determine whether the decision in the circular was lawful and procedurally fair.
The National Treasury plays a central role in the management of public finances in Kenya, particularly in the rationalization of budget and expenditure. Its powers and responsibilities are primarily grounded in the Constitution of Kenya, 2010 and the Public Finance Management Act, No. 18 of 2012 (PFMA).
Under the Constitutional, Article 201 provides that public finance shall be managed in a manner that promotes transparency, accountability, and effective use of resources.
Under Article 225(1), the National Treasury is responsible for ensuring that expenditure of public money is lawful and effective.
The stator role of the National Treasury can be found in the Public Finance Management Act, (PFMA), 2012. The Public Finance Management Act outlines the specific functions and powers of the National Treasury, including:
a) Formulation of Budget Policy. Under Section 12(1)(a) & (b), the National Treasury is responsible for managing the national government’s budget preparation process and promoting transparency and accountability in public finance.
b) Expenditure Control and Rationalization- Section 13 of the Act mandates the National Treasury to promote efficient, effective, and economic use of public resources.
Section 14(1)(a) of the Act authorizes the Cabinet Secretary for the National Treasury to issue guidelines to MDAs on budget implementation and financial management.
Section 15(2)(b) of the Act allows the Treasury to suspend or limit expenditures or commitments when necessary due to insufficient resources.
c) Budget Execution Oversight. Under Section 39(1) of the Act, the Treasury ensures that funds are spent according to the law and that budget implementation is aligned with government priorities.
d) Power to Issue Circulars: The National Treasury may issue circulars, guidelines and instructions, including on rationalization of expenditures, such as freezing or limiting specific spending (e.g., training, foreign travel, or professional fees) to ensure fiscal discipline.
In practice, budget rationalization refers to the reprioritization, restriction or reduction of expenditures to align with available resources and national development priorities. In this regard, the National Treasury can identify non-core or non-essential spending; reallocate funds to priority sectors; or issue circulars or directives limiting certain categories of expenditure (e.g., professional body subscriptions, hospitality, and travel).
Such decisions are typically guided by the Medium-Term Expenditure Framework (MTEF), resource ceilings issued to MDAs, recommendations of Pending Bills Committees or special audit reports.
It therefore follows that the National Treasury’s mandate to rationalize expenditure is a legally grounded function meant to promote fiscal sustainability, efficiency and alignment with national priorities.
While the Treasury has broad powers under the PFMA, these powers must be exercised within the bounds of the Constitution, particularly respecting the principles and values espoused in Article 10 and the Bill of Rights. These values, principles and or rights include transparency, consultation and fair administrative action.
The impugned circular, dated limits spending and is part of an expenditure rationalization effort by the National Treasury. It directed those public entities shall during the financial year 2024/2025, not pay for professional memberships and subscriptions for their officers. The Treasury cited the need to curb non-essential spending due to budgetary constraints occasioned by the rejection of the Finance Bill, 2024 Act, which led to a significant budget deficit amounting to Kshs. 346 billion, and as a result, austerity measures had to be taken and implemented to rationalize public expenditure.
The Applicant contends that this circular undermines legal compliance by public officers who are legally required to be in good standing with professional bodies such as legal practitioners. Further, that it tends to unilaterally vary the terms of employment of those employees contrary to section 10 (5) of the Employment Act. I must however refrain from determining issues employment and labour relations raised in the application as those are issues that are beyond the jurisdiction of this Court. This Court is expressly barred by Article 165(5) of the Constitution from hearing and determining disputes relating to employment and labour relations.
That said, as I have stated above, the National Treasury is mandated by law to issue circulars and even limit expenditure on what it considers non-essential services having regard to the financial situation in the country.
Historically, government departments have paid these fees and subscriptions to professional bodies for their employees, recognizing them as essential to enabling officers to perform their statutory functions lawfully.
This Court therefore does acknowledge the statutory and constitutional mandate and role of the National Treasury and the necessity of implementing such austerity measures due to the significant fiscal shortfall.
The applicant cites Articles 10 and 47 of the Constitution and argues that the impugned action was unilateral and lacked any meaningful public participation, disrupted a legitimate expectation of government-paid compliance with statutory bodies and was irrational and unfair, breaching public officers’ right to fair administrative action.
Therefor on whether the 1st Respondent’s decision to eliminate budgetary allocations for professional membership fees and subscriptions via Treasury Circular No. 8/2024 was lawful and procedurally fair, there is no dispute that the National Treasury has the legal authority to rationalize government spending under the PFMA, 2012 including issuing expenditure guidance. The Treasury may reprioritize allocations in light of macroeconomic constraints.
However, statutory discretion must be exercised in conformity with constitutional values and principles. As has been repeatedly stated by courts in this country, discretion must not be abused or exercised arbitrarily.
It was incumbent upon the National Treasury to, in accordance with constitutional dictates, conduct public participation through stakeholder engagement and consultations prior to issuing directives like the one impugned herein.
While the 1 st Respondent claims to have held budget consultations with Ministries, Departments and Agencies, no evidence has been provided to demonstrate that the Ex parte Applicant or other directly affected professionals and the professional bodies that those professionals subscribe to and pay subscription fees on an annual basis were consulted before Circular No. 8/2024 was issued. It is equally surprising that the 1 st respondent has not outlined its statutory mandate in all these matters complained of. It is not enough to say that there was budgetary constrains and or deficit. What would be the legal basis for such decisions?
Public participation is a core national value under Article 10 of the Constitution. When an administrative decision impacts specific groups of people especially professionals, by modifying established practices or entitlements, the decision-maker has a duty to conduct focused and meaningful consultations with those affected, even if no consensus is obtained from the said public participation exercise.
Article 10(2)(a) of the Constitution enshrines public participation as a binding national value. The Court in Doctors for Life International v Speaker of the National Assembly (CCT 12/05) [2006] ZACC 11 explained that public participation ensures decisions reflect public interest and are not arbitrary.
The High Court in Robert N. Gakuru & Others v Governor, Kiambu County & 3 Others [2014] eKLR stated that “public participation must be real and not illusory... meaningful engagement with the citizenry is essential.”
In National Assembly & another v Okoiti & 55 others (Civil Appeal E003 of 2023 & E016, E021, E049, E064 & E080 of 2024 (Consolidated)) [2024] KECA 876 (KLR) (31 July 2024) (Judgment) the Court of appeal stated as follow regarding intervention by the High Court in matters policy:
“H. Whether the trial Court abdicated its jurisdiction by holding that it cannot intervene on policy decisions.
209. Mr. Ochiel learned counsel for the 15th, 16th, 17th ,18th, 19th and 22nd respondents faulted the learned judges for misinterpreting Articles 10 and 165(3) on its jurisdiction thereby abdicating its jurisdiction to test the constitutionality of “anything” including policy said to infringe the Constitution in holding that the challenged taxes were constitutional because they were “matters within the competence of the legislature and reflected the policy choices of the national government” and were “governed by policy”.
210. Mr. Murugara urged that the court lacks jurisdiction to interfere with tax legislation based on the merger of policy and legislation of public finance principles, equal protection of law, fairness and judicial authority, since the rate of taxation is a policy decision that rests with the legislature. In support of the finding by the learned judges of the High Court, counsel cited the finding in Ndora Stephen vs. Minister for Education & 2 Others (supra) where the High Court held that formulation of policy and implementation thereof were within the province of the executive.
211. The learned judges of the High Court held as follows:
“ 172. Section 26 of the Finance Act amended the third schedule of the Income Tax Act to introduce new tax bands. In addition, section 7 of the Act amended section 10 of the Income Tax Act relating to withholding tax. The petitioners have not demonstrated how these amendments affect specific provisions of the Constitution. In any event, we hold that these are matters related to tax policy and administration…
Conclusions
220. Having considered, the matters placed before us for determination, we now conclude as follows:
i
…
ii
…
iii
….
(c) That, section 26 of the Finance Act, 2023 which amends the third schedule of the Income Tax Act to introduce new tax bands and section 7 of the Act that amends section 10 of the Income Tax Act in regard to withholding tax are matters related to tax policy and administration and thus not unconstitutional.”
212. We have no doubt that the State has the constitutional obligation to collect taxes, and that the National Assembly therefore has the constitutional mandate to legislate to this effect pursuant to Article 209 (1) which empowers the national government to impose taxes. However, Article 165 (3) (d) (i) & (ii) confers vast jurisdiction to the High Court to hear any question respecting the interpretation of the Constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the Constitution and also the question whether anything said to be done under the authority of the Constitution or of any law is in consistent with, or in contravention of, the Constitution. The above provision is wide enough to cover a policy or decision made by a State organ or public body.
This Court in the Pevans case held:
“Where the Constitution had reposed specific functions in an institution or organs of State, the courts must give those institutions or organs sufficient leeway to discharge their mandates and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law or that their decisions are so perverse, so manifestly irrational that they cannot be allowed to stand under the principles and values of our Constitution….”
214. Accordingly, we agree with Mr. Ochiel’s argument that the High Court in the impugned holding misinterpreted Articles 10 and 165 (3) on its jurisdiction effectively abdicating its jurisdiction to test the constitutionality of “anything” including policy said to infringe the Constitution. It is only when a state organ is executing policy within the law that the courts will be slow to intervene. Accordingly, the High Court erred in making a blanket statement suggesting that courts ought not to intervene in all policy matters.” [emphasis added]
Besides change of policy, I find that the circular impacted the statutory compliance obligations of public servants. Advocates working for state agencies are not exempt from paying for annual practicing licenses. The employers pay such fees for annual practicing certificates on behalf of their professional employees. The employees would not be eligible to eve execute legal documents such as commissioning of oaths or appearing in court or drafting pleadings as advocates if their practicing certificates are not renewed for the year. They would as a consequence be treated as unqualified persons and therefore lack the capacity to represent the agencies in legal matters. These are some of the issues that would have arisen during public participation process before eliminating such fees.
The failure to engage professional bodies or affected MDAs prior to the issuance of the circular was a breach of Article 10 and Section 4 of the Fair Administrative Action Act.
The Supreme Court in the case of British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) [2019] KESC 15 (KLR ) held as follows regarding public participation as a constitutional value:
“Public participation and consultation was a living constitutional principle that went to the constitutional tenet of the sovereignty of the people. In line with the court’s mandate under section 3 of the Supreme Court Act, the following were the guiding principles for public participation:
As a constitutional principle under article 10(2) of the Constitution, public participation applied to all aspects of governance.
The public officer and/or entity charged with the performance of a particular duty bore the onus of ensuring and facilitating public participation.
The lack of a prescribed legal framework for public participation was no excuse for not conducting public participation; the onus was on the public entity to give effect to the constitutional principle using reasonable means.
Public participation had to be real and not illusory. It was not a cosmetic, public relations act or a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There was need for both quantitative and qualitative components in public participation.
Public participation was not an abstract notion; it must be purposive and meaningful.
Public participation had to be accompanied by reasonable notice and reasonable opportunity. Reasonableness could be determined on a case to case basis.
Public participation was not necessarily a process consisting of oral hearings, written submissions could also be made. The fact that someone was not heard was not enough to annul the process.
Allegations of lack of public participation did not automatically vitiate the process. The allegations had to be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation was to be determined on a case to case basis.
“Components of meaningful public participation included the following;
clarity of the subject matter for the public to understand;
structures and processes (medium of engagement) of participation that were clear and simple;
opportunity for balanced influence from the public in general;
commitment to the process;
inclusive and effective representation;
integrity and transparency of the process;
capacity to engage on the part of the public, including that the public had to be first sensitized on the subject matter.”
Similarly, in British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others [2017] KECA 763 (KLR) the Court of Appeal observed thus:
“46. The procedure adopted in making the Regulations has been challenged to the extent that there was no consultation or adequate public participation. In this regard, Article 10 of the Constitution identifies inclusiveness, transparency, accountability and public participation as key values and principles of governance that bind all State organs, State officers and public officers in the interpretation of the Constitution or enactment or interpretation of any law……..
“47. It is clear that since the promulgation of the Constitution of Kenya 2010, the concept of public participation and consultation has been entrenched. Indeed, the concept is consistent with the principle of 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. It is thus not surprising that the courts have addressed the concept of Public participation in enactment of legislation, severally since the promulgation of the Constitution of Kenya 2010.”
The Court in Kenya Human Rights Commission v Attorney General & Another [2018] eKLR also noted that:
“Public participation is one of the national values and principles in our constitution which must be observed by all persons; state organs and public officers in the exercise of their responsibilities. Article 10 (1) of the constitution states that the national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them applies or interprets the Constitution ; (b) enacts, applies or interprets any law; or makes or implements public policy decisions. .And according to Article 10 (2), the national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and “participation of the people.”
The Court of Appeal in Kiambu County Government & 3 others v Robert N. Gakuru & Others [2017] eKLR noted that:
“…The issue of public participation is of immense significance considering the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of the people. The Constitution
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