https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9587

Matindi v Salaries and Remuneration Commission & 68 others (Petition E297 of 2024) [2026] KEHC 9587 (KLR) (Constitutional and Human Rights) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 9587 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E297 of 2024 B Mwamuye, J June 10, 2026 IN THE MATTER OF ARTICLES 1, 2, 3, 10, 19, 20, 21, 22, 23, 25, 28, 73, 74, 132, 156, 159, 165, 201, 206, 228, 230, 232, 248, 249, 258, 259 AND 260 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF ALLEGED THREATS TO AND VIOLATIONS OF ARTICLES 1(1), 2(1, 2 and 4), 3(1), 10, 73, 74, 75, 129, 132(2)(e), 201, 206, 228, 230(4)(a) and (5), 232(1)(a,b, d, e and f), 249(1 and 2), 259 AND 260 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF CONSTITUTIONAL VALIDITY OF REMUNERATION AND BENEFITS FOR PERSONS APPOINTED TO THE OFFICE OF HIGH COMMISSIONERS, AMBASSADORS AND DIPLOMATIC AND CONSULAR REPRESENTATIVES SET BY THE SALARIES AND REMUNERATION COMMISSION (SRC) ON 29TH MARCH 2024ANDIN THE MATTER OF THE DOCTRINES OF RULE OF LAW, LEGITIMATE EXPECTATIONS, CONSTITUTIONALISM, ULTRA VIRES AND VOID AB INITIO Between Eliud Karanja Matindi Petitioner and Salaries and Remuneration Commission 1st Respondent Hon. Attorney General 2nd Respondent Controller Of Budget 3rd Respondent and Abdi Aden Korio & 65 others & 65 others & 65 others & 65 others Interested Party Judgment Introduction 1.The Petitioner, Eliud Karanja Matindi, is a Kenyan citizen resident in Poole, within the local authority area of Bournemouth, Christchurch and Poole in the United Kingdom of Great Britain and Northern Ireland. He describes himself as a public-spirited individual and a champion and defender of the Constitution of Kenya, 2010, committed to its complete and faithful implementation as the foundation for the realisation of the aspirations of all Kenyans for a government and society founded upon the values of human rights, equality, freedom, democracy, social justice and the rule of law. He instituted the present proceedings in his own behalf and in the public interest, in defence of the Constitution. 2.The 1st Respondent, the Salaries and Remuneration Commission (hereinafter referred to as SRC), is a constitutional commission established under Article 230 of the Constitution, as read together with Articles 248 and 253 thereof and the Salaries and Remuneration Commission Act, 2011. Its constitutional mandate includes, pursuant to Article 230(4)(a) of the Constitution, the setting and regular review of the remuneration and benefits of all State officers, which mandate is to be discharged in accordance with the Constitution and the law. 3.The 2nd Respondent, the Honourable Attorney General, is a State officer and the holder of the office established under Article 156 of the Constitution. He is joined to these proceedings as the principal legal adviser to the Government, charged with ensuring the Government's compliance with the Constitution and the laws of Kenya, representing the national government in civil proceedings to which it is a party, and discharging the constitutional duty to promote, protect and uphold the rule of law and defend the public interest. 4.The 3rd Respondent, the Controller of Budget, is the holder of an independent constitutional office established under Article 228, as read together with Article 248 of the Constitution. The functions of the 3rd Respondent include authorising withdrawals of public funds under Articles 204, 206 and 207 of the Constitution. The 3rd Respondent is joined to these proceedings on the basis that the office is required to authorise withdrawals from the Consolidated Fund and other public funds for the payment of the remuneration and benefits of persons appointed to the State office of high commissioner, ambassador, diplomatic and consular representative, which authorisation may only issue where such remuneration and benefits have been set and reviewed in accordance with the law. 5.The 1st to the 66th Interested Parties are persons serving as Kenya's high commissioners, ambassadors and diplomatic and consular representatives, having been appointed pursuant to Article 132(2)(e) of the Constitution. Being State officers within the meaning of Article 260 of the Constitution, as read together with section 20(1) of the Foreign Service Act, 2021, they have identifiable interests liable to be affected by the outcome of these proceedings. 6.On 7th December 2021, the Foreign Service Act, 2021 came into force. Section 20(1) thereof designated the offices of high commissioner, ambassador, diplomatic representative and consular representative as State offices for the purposes of Article 260 of the Constitution. Section 20(2) reproduced the provisions of Article 132(2)(e) of the Constitution relating to the nomination by the President and, upon approval by the National Assembly, the appointment of persons to serve as high commissioners, ambassadors and diplomatic or consular representatives of the Republic. 7.The Petitioner contends that, by virtue of Article 230(4)(a) of the Constitution, the SRC was required to set the remuneration and benefits applicable to the new State offices established under section 20(1) of the Foreign Service Act, 2021. Since the Act prescribed no timeframe within which that mandate was to be discharged, the SRC was, pursuant to Article 259(8) of the Constitution, required to undertake the exercise without unreasonable delay. 8.The Petitioner further avers that on 10th November 2023 he instituted Petition No. HCCHRPET E447 of 2023, challenging, inter alia, the constitutional validity of the appointment of persons, including some of the Interested Parties herein, to the State offices of high commissioner, ambassador and diplomatic and consular representative before the SRC had set the remuneration and benefits applicable to those offices. 9.According to the Petitioner, as at 10th November 2023, the SRC had not set the remuneration and benefits for the offices declared to be State offices on 7th December 2021. He relies on a Replying Affidavit dated 13th February 2024, sworn on behalf of the SRC by Dr. Hilary Patroba, Director, Remuneration Services, in Petition No. HCCHRPET E447 of 2023, in which the SRC confirmed that, as at both the date of the petition and the date of the affidavit, it had not set the remuneration and benefits for persons appointed to the State offices of high commissioner, ambassador, diplomatic or consular representative as required by Articles 230(4)(a) and 260 of the Constitution, read together with section 20(1) of the Foreign Service Act, 2021. 10.The Petitioner further states that, in a Supplementary Affidavit dated 30th May 2024 sworn by the same deponent in the said proceedings, the SRC deposed that it had, on 29th March 2024, set the remuneration and benefits for persons appointed to the State office of high commissioner, ambassador, diplomatic or consular representative. The remuneration and benefits so determined were communicated to the Principal Secretary, Ministry of Foreign Affairs and Diaspora Affairs, by a letter dated 24th May 2024 and were to take effect from 1st July 2024. 11.The Petition before this Court challenges the decision of the SRC to set the remuneration and benefits for persons appointed to the State offices of high commissioner, ambassador and diplomatic and consular representative on the ground that the decision was made in violation of the Constitution. The Petitioner contends that the SRC undertook the exercise without conducting public participation, contrary to Articles 10(2) and 201 of the Constitution, and further unconstitutionally ceded part of its mandate by delegating to an unknown and unidentified person the power to determine what is described as the Foreign Service Allowance, payable to State officers serving as ambassadors, high commissioners and diplomatic and consular representatives deployed to foreign missions, in addition to the basic salary set by the SRC. The Petitioner's Case 12.The Petitioner's case is set out in the Petition dated 14th June 2024, supported by an affidavit sworn on the same date and filed together with a Notice of Motion seeking conservatory orders pending the hearing and determination of the Petition. The supporting affidavit was accompanied by an annexure marked "Annexure Exhibit – EKM 0001," comprising, inter alia, pleadings filed in Petition No. HCCHRPET E447 of 2023, the SRC's Replying Affidavit and Supplementary Affidavit filed in those proceedings, a screenshot of the SRC's website showing public participation activities, and a screenshot of a message from the Kenya High Commission in London. 13.The Petitioner challenges the decision of the SRC, communicated through its letter dated 24th May 2024, setting the remuneration and benefits of persons holding the State offices of ambassadors, high commissioners and diplomatic and consular representatives. He contends that the decision contravenes the Constitution and is therefore unconstitutional, null and void. 14.It is the Petitioner's case that the SRC failed to subject the proposed remuneration and benefits to public participation before making its decision. According to the Petitioner, this omission violated the national values and principles of governance enshrined in Article 10(2) of the Constitution, particularly the principles of the rule of law, democracy and participation of the people, good governance, transparency and accountability. 15.The Petitioner further contends that the impugned decision violated Article 201 of the Constitution, which requires openness, accountability and public participation in financial matters, as well as the prudent and responsible use of public resources. His position is that, having failed to subject the proposed remuneration and benefits to public participation before confirming them on 29th March 2024, the SRC cannot demonstrate that public funds will be utilised in a prudent and responsible manner. 16.The Petitioner further asserts that the constitutional function of setting the remuneration and benefits of State officers, being a mandate exclusively vested in the SRC under Article 230(4)(a) of the Constitution, could not lawfully be treated as a routine internal administrative process to be undertaken solely at a meeting of the Commission. He contends that the exclusion of the public from such an exercise amounted to a violation of the principles of leadership and integrity under Article 73 of the Constitution and constituted a breach of the constitutional trust reposed in the Commission. 17.The Petitioner also avers that the manner in which the SRC discharged its constitutional mandate demonstrated disregard for the people of Kenya and undermined public confidence in the Commission. He points out that although the relevant offices became State offices upon the coming into force of the Foreign Service Act, 2021 on 7th December 2021, the SRC did not set the applicable remuneration and benefits until 29th March 2024, with the determination taking effect only on 1st July 2024. 18.It is further the Petitioner's case that the failure to facilitate public participation equally violated the values and principles of public service under Article 232 of the Constitution, including high standards of professional ethics, the efficient, effective and economic use of public resources, the involvement of the people in policy-making, transparency, and the provision of timely and accurate information to the public. 19.The Petitioner additionally contends that the SRC violated Article 230(4)(a) of the Constitution by delegating to an undisclosed entity the determination of the Foreign Service Allowance payable to ambassadors, high commissioners and diplomatic and consular representatives, over and above the basic salary set by the Commission. He maintains that, having failed to conduct public participation, the SRC cannot demonstrate compliance with the considerations prescribed under Article 230(5) of the Constitution in determining the impugned remuneration and benefits. 20.The Petitioner further argues that the delegation of part of the remuneration-setting function deprived the SRC of constitutional control over the total remuneration and benefits payable to the affected State officers and undermined its constitutional obligation to ensure fiscal sustainability. He maintains that Article 230(4)(a) vests the mandate to set and regularly review the remuneration and benefits of State officers exclusively in the SRC and does not permit delegation of that constitutional function. 21.In his written submissions dated 6th May 2025, the Petitioner submitted that the constitutional requirement for public participation is now firmly settled in Kenyan jurisprudence. In support of that proposition, reliance is placed in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others Kenya Tobacco Control Alliance & another (Interested Parties) Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR, in which the Supreme Court affirmed that public participation is entrenched in the Constitution as a national value and principle of governance under Article 10 and is binding upon all State organs, State officers, public officers and all persons. 22.The Petitioner further submitted that, pursuant to section 107 of the Evidence Act Cap 80, the burden rested upon the SRC to demonstrate compliance with its constitutional obligation to facilitate public participation before making the impugned decision. He argued that the SRC produced no evidence of any public participation, including invitations to members of the public to submit views, reports of the public engagement process, or any indication of how public representations, if received, influenced the final determination. 23.The Petitioner also relied on 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) for the proposition that, regardless of the nature of an instrument and notwithstanding that the power to make it flows directly from the Constitution, both the letter and the spirit of the Constitution must be upheld in the process of its enactment, and that any rules made by any entity must conform to the Constitution. 24.On the question of gazettement, the Petitioner places reliance on Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others [2014] eKLR, submitting that the Court therein held that the Kenya Gazette is the official Government bulletin through which the SRC formally communicates its decisions relating to the remuneration and benefits of State officers. Consequently, he argued that, since the impugned decision was never published in the Kenya Gazette, it is unconstitutional, null and void. 25.Finally, on the issue of unconstitutional delegation, the Petitioner places reliance on Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others [2014] eKLR, Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15 others Parliament & 4 others (Interested Parties) [2020] eKLR, and Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others [2025] KECA 275 (KLR) in support of his submission that Article 230(4)(a) confers upon the SRC the exclusive constitutional mandate to set and regularly review all components of the remuneration and benefits payable to State officers, a mandate which cannot lawfully be delegated. The 1St Respondent's Case 26.The 1st Respondent entered appearance through a Memorandum of Appearance dated 27th June 2024 filed by Ruth Bikambo, Advocate. It subsequently filed a Replying Affidavit sworn on 12th July 2024 by Anne R. Gitau, E.B.S., the Chief Executive Officer and Commission Secretary of the SRC, in opposition to both the Petition and the Notice of Motion. The 1st Respondent also filed Grounds of Opposition dated 27th June 2024, written submissions dated 9th September 2025, and a List of Authorities. 27.Through the Replying Affidavit, the SRC deposed that it is an independent constitutional commission established under Article 230 of the Constitution. It stated that its mandate under Article 230(4) is to set and regularly review the remuneration and benefits of all State officers and to advise the national and county governments on the remuneration and benefits of all other public officers. It further deposed that, in discharging that mandate, it is constitutionally and statutorily required by Article 230(5) of the Constitution and section 12 of the Salaries and Remuneration Commission Act to take into account, among other considerations, fiscal sustainability, the need to attract and retain the requisite skills in the public service, productivity and performance, transparency and fairness, and the principle of equal pay for work of equal value. 28.The SRC explained that, in the discharge of its constitutional mandate, it undertakes job evaluation within the public service, which it described as a systematic process for determining the relative worth of different jobs within an organisation and their external relativities. It deposed that following the coming into force of the Foreign Service Act, 2021, section 20(1) thereof designated the offices of High Commissioner, Ambassador, Diplomatic Representative and Consular Representative as State offices for purposes of Article 260 of the Constitution. To facilitate job evaluation, the SRC requested the Ministry of Foreign Affairs, by a letter dated 28th February 2024, to furnish it with the approved job descriptions for those positions. The Ministry supplied the approved job descriptions on 4th March 2024. 29.The SRC deposed that, upon receipt of the approved job descriptions, it conducted a comprehensive job evaluation for the offices of Ambassador, High Commissioner, Diplomatic Representative and Consular Representative and graded the positions at Job Grade E4. It further stated that, during the Third Remuneration and Benefits Review Cycle, it undertook comprehensive stakeholder engagement and public participation in respect of all State officer job grades and the corresponding remuneration and benefits structures, including Job Grade E4. In support of that assertion, it annexed a stakeholder engagement and public participation report marked "ARG-4." 30.The SRC maintained that the remuneration and benefits structure applicable to Job Grade E4 is intended to apply uniformly to all State offices falling within that grade so as to ensure consistency in remuneration for positions of equivalent responsibility and complexity and to give effect to the constitutional principle of equal pay for work of equal value. 31.The SRC further deposed that, having undertaken stakeholder engagement and public participation during the Third Remuneration and Benefits Review Cycle, the Commission, at its 595th meeting held on 29th March 2024, adopted and set the remuneration and benefits applicable to the offices of Ambassador, High Commissioner, Diplomatic Representative and Consular Representative, all of which had been graded at Job Grade E4. It further stated that it subsequently engaged the National Treasury on the availability of funds for implementation and, upon confirmation that budgetary provision would be available from 1st July 2024, communicated the approved remuneration and benefits to the Ministry of Foreign Affairs by its letter dated 20th May 2024. 32.In its written submissions dated 9th September 2025, the SRC identified for determination the questions whether the offices in issue existed before their remuneration and benefits were set, whether it conducted public participation prior to setting the remuneration and benefits, whether failure to publish the remuneration and benefits in the Kenya Gazette invalidated its decision, whether it unlawfully delegated its constitutional mandate in relation to the Foreign Service Allowance, whether the Petition satisfied the threshold established in Anarita Karimi Njeru and whether the remedy of certiorari was available in the circumstances. 33.On the issue of public participation, the SRC submitted that the evidence contained in the Replying Affidavit sufficiently demonstrated that it undertook stakeholder engagement and public participation before the commencement of the Third Remuneration and Benefits Review Cycle. It submitted that, after grading State offices and developing the attendant remuneration and benefits structures, it invited stakeholders and members of the public to submit their views and thereafter prepared a report on the exercise. In support of that submission, reliance was placed on British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others Kenya Tobacco Control Alliance & another (Interested Parties) Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR, in which the Supreme Court set out the guiding principles governing public participation, and Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy & 17 others [2015] eKLR, for the proposition that public participation does not require every person to be heard, but rather that there should be no "intentional exclusivity" in the participation programme. 34.On the issue of gazettement, the SRC submitted that, consistently with the constitutional principles of transparency under Articles 10, 47 and 230(5) of the Constitution, it enjoys discretion as to the appropriate mode of communicating its decisions, including decisions relating to remuneration and benefits. It contended that publication in the Kenya Gazette is only one recognised means of official communication within Government and that decisions may equally be communicated through circulars, letters and other lawful administrative instruments. The Court was accordingly urged to take judicial notice of the various recognised modes of official government communication and to uphold the flexibility available to public institutions in selecting the appropriate mode of communication depending on the circumstances and attendant costs. 35.With regard to the allegation of unlawful delegation, the SRC submitted that the claim that it delegated the determination of the Foreign Service Allowance was unsupported by any evidence. It contended that the diplomatic offices in question have long existed and that remuneration and benefits structures applicable to those offices have similarly existed. It maintained that the retention or continued existence of the impugned allowance, or any other benefit, does not constitute delegation of its constitutional mandate. 36.On the issue of competency of the Petition, the SRC relied on Anarita Karimi Njeru v Republic (1976–1980) 1 KLR 1272 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR for the principle that a constitutional petition must plead, with reasonable precision, the constitutional provisions alleged to have been violated and the manner of their violation. It submitted that the present Petition falls short of that threshold because it neither identifies with the requisite precision the constitutional provisions allegedly violated by the SRC nor demonstrates how the Commission's actions or omissions occasioned the alleged constitutional violations. The 2nd Respondent's Case 37.The 2nd Respondent opposed both the interlocutory application and the Petition. To that end, the Honourable Attorney General filed Grounds of Opposition dated 8th July 2024 in response to the Notice of Motion and further Grounds of Opposition dated 19th May 2025 in opposition to the Petition. 38.The 2nd Respondent contended that the conservatory orders sought would unjustifiably interfere with the constitutional mandate of the 1st Respondent as an independent constitutional commission. Further it was pointed out that the Petitioner's earlier challenge to the appointment and assumption of office of the Interested Parties remained pending before the High Court in Nairobi HCPT E447 of 2023, and submitted that the present Petition sought to prevent the implementation of a decision contained in a letter dated 24th May 2024, which had not been annexed to the Petitioner's supporting documents. 39.It is the 2nd Respondent’s submission that the Petition is founded upon a misapprehension of Article 230(4)(a) of the Constitution and lacks both a proper factual and legal foundation. It was contended that the 1st Respondent acted within its constitutional mandate under Article 230(4)(a) in setting the remuneration and benefits applicable to the State offices declared under section 20(1) of the Foreign Service Act, 2021. The 2nd Respondent maintained that, in discharging that mandate, the SRC neither abdicated nor delegated its constitutional functions, and that the Petitioner had failed to demonstrate that the Commission transferred any part of its constitutional mandate to another person or entity. 40.According to the 2nd Respondent the engagement with stakeholders does not amount to an unlawful delegation of constitutional authority but is, instead, consistent with the national values and principles of governance under Article 10 of the Constitution. It was argued that the Petitioner had failed to adduce any evidence demonstrating that public participation was either not undertaken or was constitutionally inadequate. In support of that proposition, the 2nd Respondent places reliance on Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy & 17 others supra for the principle that public participation does not require that every individual be afforded an opportunity to present his or her views, nor does it guarantee that any particular view will prevail. 41.The 2nd Respondent places reliance on Anarita Karimi Njeru v Republic supra, in submitting that the Petition does not satisfy the settled threshold for constitutional litigation as it fails to demonstrate, with the requisite precision, the manner in which the Petitioner's constitutional rights and freedoms have been violated or threatened, or how the impugned actions constitute a violation of the Constitution or any other law. The Interested Parties' Case 42.The Interested Parties, being the 66 individuals appointed to the offices of high commissioners, ambassadors, and diplomatic and consular representatives, did not file any separate responses to the Petition or the Application. The 2nd Respondent indicated that the Interested Parties would be served through the Office of the Attorney General. The Court notes that the Interested Parties have an identifiable stake in the outcome of these proceedings as they are the direct beneficiaries of the impugned remuneration and benefits structure. However, their silence in these proceedings is taken as an indication that they abide by the decision of the Court. Analysis And Determination 43.Having carefully considered the Petition, the respective responses, the affidavits on record, the submissions by the parties, and the various authorities cited, the Court is of the view that the following issues arise for determination:i.Whether the Petitioner has met the threshold for the hearing of a constitutional petition as established in Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance.ii.Whether the SRC conducted adequate public participation before setting the remuneration and benefits for the offices of high commissioners, ambassadors, and diplomatic and consular representatives on 29th March 2024.iii.Whether the failure to publish the remuneration and benefits for the said offices in the Kenya Gazette renders the SRC's decision invalid.iv.Whether the SRC unlawfully delegated its constitutional mandate under Article 230(4)(a) regarding the setting of Foreign Service Allowance.v.Whether the SRC's decision setting the remuneration and benefits for the said offices is constitutionally valid, and what orders should issue. Whether the Petitioner has met the threshold for the hearing of a constitutional petition as established in Anarita Karimi Njeru v Republic and Mumo Matemu v Trusted Society of Human Rights Alliance 44.The 1st and 2nd Respondents challenge the competency of the Petition on the ground that it does not satisfy the threshold for constitutional litigation as articulated in Anarita Karimi Njeru v Republic (1976–1980) 1 KLR 1272 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. Their contention is that the Petitioner has neither identified with the requisite precision the constitutional provisions alleged to have been violated nor demonstrated the manner in which the impugned conduct of the 1st Respondent occasioned the alleged constitutional violations. 45.The law governing the pleading of constitutional petitions is well settled. In Anarita Karimi Njeru v Republic (supra), the Court held:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 46.The foregoing principle was revisited by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, where the Court clarified that the requirement of precision ought not to be construed as an invitation to undue formalism. The Court stated:“We cannot but emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In our view, however, precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated.” 47.The Court further observed that:“The whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point.” 48.The Court of Appeal nevertheless cautioned that procedural requirements are not inimical to substantive justice. It observed that the contention that compliance with procedural rules is antithetical to Article 159 of the Constitution is misconceived, since procedure remains the handmaiden of the just determination of disputes. Parties and the Court must know, with reasonable clarity, the issues falling for determination. 49.The Supreme Court echoed the same principle in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR, where it stated:“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru vs Republic, (1979) KLR 154, the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of the contravention or infringement.” 50.Guided by the foregoing principles, I have carefully considered the Petition dated 14th June 2024. In my view, the objection taken by the Respondents is without merit. The Petition expressly identifies the constitutional provisions said to have been violated, including Articles 10(2), 73, 201, 230(4)(a), 230(5) and 232 of the Constitution, among others. More importantly, it sets out the factual basis upon which the alleged violations are founded. 51.The gravamen of the Petition is readily discernible. The Petitioner contends that the 1st Respondent set the remuneration and benefits of persons appointed to the offices of ambassador, high commissioner and diplomatic and consular representative without undertaking public participation, contrary to Articles 10(2) and 201 of the Constitution, that it unlawfully delegated part of its exclusive constitutional mandate under Article 230(4)(a) by permitting an unidentified person or entity to determine the Foreign Service Allowance and that, in so doing, it failed to adhere to the constitutional considerations prescribed under Article 230(5). 52.Those allegations are not made in the abstract. They are accompanied by the factual foundation upon which they rest, including the chronology leading to the impugned decision and the documentary material annexed to the supporting affidavit. Whether those allegations are ultimately proved is a matter for determination on the merits. At this stage, the Court is concerned only with whether the Petition discloses, with reasonable precision, the constitutional grievances raised and the manner in which the alleged violations are said to have occurred. 53.In my considered view, it does. The Respondents themselves cannot plausibly contend that they were unable to appreciate the case they were required to answer. The 1st Respondent filed a detailed Replying Affidavit traversing each of the Petitioner's complaints, including the process of job evaluation, stakeholder engagement, public participation, communication of the impugned decision and the allegation of unlawful delegation. Similarly, the 2nd Respondent filed substantive Grounds of Opposition addressing the precise constitutional questions raised in the Petition. The comprehensive responses filed by both Respondents demonstrate that the Petition adequately defined the issues in controversy. 54.Accordingly, I am satisfied that the Petition complies with the pleading threshold established in Anarita Karimi Njeru v Republic (supra), as explained by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others supra and affirmed by the Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others supra. The preliminary objection to the competency of the Petition therefore fails. Whether the SRC conducted adequate public participation before setting the remuneration and benefits for the offices of high commissioners, ambassadors, and diplomatic and consular representatives on 29th March 2024 55.The principal complaint contention by the Petitioner is that the 1st Respondent set the remuneration and benefits applicable to the offices of high commissioner, ambassador and diplomatic and consular representative without first facilitating public participation as required by the Constitution. The SRC, on its part, maintains that it satisfied the constitutional obligation through the stakeholder engagement and public participation undertaken during the Third Remuneration and Benefits Review Cycle, which, according to it, covered all State officer job grades, including Job Grade E4 under which the impugned offices were eventually classified. 56.Public participation is no longer a matter of policy preference, it is a constitutional imperative. Article 10(2) of the Constitution entrenches participation of the people as one of the national values and principles of governance binding upon all State organs, State officers, public officers and all persons whenever they interpret or apply the Constitution, enact, apply or interpret any law, or make or implement public policy decisions. 57.The governing principles were comprehensively articulated by the Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others case The Court held, among other things, that—“public participation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people that-the public entity charged with a constitutional or statutory mandate bears the obligation of ensuring and facilitating public participation that-public participation must be real and not illusory, and ought not to be a mere formality or public relations exerciseand that-its sufficiency depends upon the peculiar circumstances of each case, regard being had to both its quantitative and qualitative aspects.” 58.The Supreme Court further emphasized that public participation must be purposive and meaningful, and that the public must be afforded reasonable notice and a reasonable opportunity to participate. 59.The Court of Appeal adopted a similar approach in Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others [2017] KECA 436 (KLR), where it held that what is essential is the provision of reasonable notice and a reasonable opportunity to participate, the sufficiency of which depends upon the nature and importance of the decision under consideration and the extent of its impact upon the public. 60.Whether the constitutional threshold was attained in the present case is ultimately a question of evidence. The burden rested upon the SRC, as the public body asserting compliance with the Constitution, to demonstrate that it facilitated meaningful public participation before making the impugned decision. 61.The evidence relied upon by the SRC is the stakeholder engagement and public participation report annexed to the Replying Affidavit as "ARG-4." I have carefully examined that document. It is an invitation issued to the public to submit memoranda on the proposed remuneration and benefits for State officers during the Financial Years 2023/2024 and 2024/2025, the submissions being required to reach the SRC by 13th July 2023. 62.Significantly, the document does not identify the offices of high commissioner, ambassador or diplomatic and consular representative as among the offices whose remuneration and benefits were proposed for consideration. Neither does it disclose that the SRC was then undertaking a job evaluation of those offices or contemplating their placement within Job Grade E4. 63.The chronology placed before the Court assumes considerable significance. The offices in question became State offices upon the coming into force of the Foreign Service Act, 2021 on 7th December 2021. The public participation exercise relied upon by the SRC concluded on 13th July 2023. However, the evidence tendered by the SRC itself shows that it only requested the approved job descriptions from the Ministry of Foreign Affairs on 28th February 2024, received them on 4th March 2024, thereafter undertook the job evaluation, graded the offices at Job Grade E4, and finally set the remuneration and benefits at its 595th Commission Meeting held on 29th March 2024. 64.That chronology demonstrates that the job evaluation exercise giving rise to the impugned remuneration occurred several months after the public participation process upon which the SRC now relies had already been concluded. There is no evidence that, following the job evaluation, the proposed grading of the offices or the proposed remuneration and benefits were ever subjected to any further stakeholder engagement or public participation before the Commission adopted its decision on 29th March 2024. 65.The Court is unable to accept the SRC's submission that a general public participation exercise undertaken before the relevant job evaluation was sufficient to satisfy the constitutional obligation in respect of the impugned decision. Public participation is intended to enable members of the public to interrogate and express views on the specific proposal under consideration. That objective cannot be realised where, at the time public participation is conducted, neither the job evaluation nor the proposed remuneration for the affected offices is in existence. 66.As the Supreme Court observed in the British American Tobacco case public participation must be real, purposive and meaningful. It follows that the public must be placed in a position where they understand the proposal upon which their views are sought. In the absence of any evidence that the public was invited to comment upon the proposed remuneration and benefits for the offices of high commissioner, ambassador and diplomatic and consular representative after those offices had been evaluated, the constitutional requirement cannot be said to have been satisfied. 67.I have equally considered the reliance placed by the 2nd Respondent upon Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy supra. That authority correctly states that public participation does not require that every citizen be heard or that every view expressed must prevail. However, that principle presupposes the existence of a constitutionally compliant public participation process. It cannot excuse the absence of evidence demonstrating that the impugned decision itself was subjected to meaningful public participation. 68.I am also guided by Ombati v Chief Justice & President of the Supreme Court & another supra where the Court held that notwithstanding that the power to make an instrument flows directly from the Constitution, both the letter and the spirit of the Constitution must inform the process leading to its enactment. The constitutional obligation to facilitate public participation is therefore not displaced merely because the power exercised is itself constitutional. 69.Having considered the pleadings, the affidavits and the documentary evidence placed before the Court, I am not persuaded that the SRC discharged the constitutional burden of demonstrating that meaningful public participation preceded its decision of 29th March 2024. The evidence establishes only that a general stakeholder engagement exercise was undertaken in July 2023. It does not establish that the specific remuneration and benefits applicable to the offices of high commissioner, ambassador and diplomatic and consular representative, following their job evaluation and grading in March 2024, were ever exposed to public participation before their adoption. 70.I therefore find that the process leading to the setting of the remuneration and benefits for the offices of high commissioner, ambassador and diplomatic and consular representative failed to satisfy the constitutional requirements of public participation under Articles 10(2), 201(a) and 232(1)(d) of the Constitution. The impugned decision was consequently arrived at through a procedurally defective process and cannot be sustained. Whether the failure to publish the remuneration and benefits for the said offices in the Kenya Gazette renders the SRC's decision invalid 71.The Petitioner further contends that the decision of the 1st Respondent setting the remuneration and benefits applicable to the offices of high commissioner, ambassador and diplomatic and consular representative is invalid because it was never published in the Kenya Gazette. According to the Petitioner, gazettement constitutes the only formal means through which the SRC could lawfully communicate a decision of that nature. The 1st Respondent, on the other hand, maintains that neither the Constitution nor the Salaries and Remuneration Commission Act prescribes gazettement as the exclusive mode of communicating its decisions, and that it retains discretion to communicate its determinations through other lawful administrative instruments, including official correspondence. 72.There can be no dispute that the Kenya Gazette occupies a central place within Kenya’s legal framework. In Ali Hassan Joho & another v Suleiman Said Shahbal & 2 others, Court of Appeal Civil Appeal No. 12 of 2013, the Court of Appeal observed that the Kenya Gazette is the official newspaper of the Government in which official matters and notices are published, and that it possesses evidentiary character. That position is reinforced by section 68 of the Interpretation and General Provisions Act, which provides that production of a copy of the Gazette containing a written law or notice constitutes prima facie evidence of the due making and tenor of that written law or notice. 73.The Petitioner places reliance on Okiya Omtatah Okoiti & 3 others v Attorney General & 5 others [2014] eKLR, wherein the High Court observed that the Kenya Gazette is the official bulletin of the Government through which Government decisions are formally announced, and expressed the view that the SRC formally conveys its decisions on the remuneration and benefits of State officers through publication in the Kenya Gazette. The Court notes, however, that the decision in that case arose in the context of Gazette Notices Nos. 2885, 2886, 2887 and 2888 of 1st March 2013, by which the SRC had in fact published the remuneration of various categories of State officers. 74.The question falling for determination in the present proceedings is whether publication in the Kenya Gazette is a legal precondition to the validity of every decision made by the SRC under Article 230(4)(a) of the Constitution. 75.Neither Article 230 of the Constitution nor the Salaries and Remuneration Commission Act expressly requires that every determination setting or reviewing the remuneration and benefits of State officers must be gazetted before it acquires legal effect. While Article 230(4)(a) confers upon the SRC the constitutional mandate to set and regularly review the remuneration and benefits of State officers, it does not prescribe the mode by which such determinations are to be communicated. 76.In those circumstances, the Court is unable to accept the Petitioner's submission that the mere absence of publication in the Kenya Gazette, without more, renders the impugned decision unconstitutional or invalid. In the absence of an express constitutional or statutory requirement, the Court cannot impose a mandatory obligation of gazettement where the law itself has not done so. It follows that the validity of the impugned decision cannot be impeached solely on the basis that it was communicated by letter rather than through publication in the Kenya Gazette. 77.That said, the Court is not unmindful that the impugned decision concerns the expenditure of public funds in the form of remuneration and benefits payable to State officers, funded from the public purse. Decisions affecting the allocation and utilisation of public resources are constitutionally underpinned by the principles of transparency, accountability, and prudent management of public finances as envisaged under Articles 10, 201 and 232 of the Constitution. In that context, the manner in which such decisions are communicated bears relevance to public confidence in the integrity and openness of the process. The absence of publication in the Kenya Gazette, or any other comparable public-facing mechanism, is therefore relevant not as a matter of legal invalidity, but as a contextual consideration bearing on the transparency of the process adopted. 78.The Court therefore finds that the Petitioner's challenge cannot succeed on the ground of non-gazettement alone. The Constitution and the applicable statutory framework do not make publication in the Kenya Gazette a condition precedent to the validity of every determination made by the SRC under Article 230(4)(a). The Court's conclusion that the impugned decision cannot stand rests, not on the absence of gazettement, but on the independent and substantive finding already made that the remuneration and benefits were set without constitutionally adequate public participation. The absence of publication in the Kenya Gazette serves only to reinforce concerns regarding transparency in the process, it is not, standing alone, a sufficient ground upon which to invalidate the decision. Whether the SRC unlawfully delegated its constitutional mandate under Article 230(4)(a) regarding the setting of Foreign Service Allowance 79.The Petitioner contends that the SRC violated Article 230(4)(a) of the Constitution by delegating to an unknown entity the determination of the Foreign Service Allowance payable to persons serving in the offices of high commissioner, ambassador and diplomatic and consular representative deployed in foreign missions. The SRC, on its part, submits that the allegation of delegation is unfounded and unsubstantiated, and that reference to “current rates” does not amount to delegation but to the application of an existing remuneration component. 80.The letter dated 24th May 2024 addressed by the SRC to the Principal Secretary, Ministry of Foreign Affairs and Diaspora Affairs, provides that: “Foreign Service Allowance: In addition to the set Basic Salary in Table 1 Ambassadors, High Commissioners Diplomatic or Consular Representative deployed in foreign missions to be paid foreign service allowance at the current rates unless subsequently set by SRC.” The Court notes that the phrase “current rates” is not defined in the letter, nor is any source, instrument or authority identified as the origin of those rates. No material has been placed before the Court explaining what those rates are, when they were set, or by whom they were determined. 81.Article 230(4)(a) of the Constitution vests in the SRC the mandate to set and regularly review the remuneration and benefits of all State officers. That mandate is expressed in mandatory terms and is central to the constitutional design of remuneration governance for State officers. The independence of the SRC in the discharge of that function has been affirmed in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others (supra), where the Supreme Court emphasized that constitutional independence is safeguarded by the Constitution itself and does not connote detachment from other actors in governance. 82.However, the principle of independence does not derogate from the requirement that a constitutional commission must itself discharge its core constitutional mandate. The setting and review of remuneration and benefits under Article 230(4)(a) is not an administrative adjunct function, it is the very purpose for which the SRC is established. The Court of Appeal in Parliamentary Service Commission & 4 others v Salaries and Remuneration Commission & 7 others [2025] KECA 275 (KLR) affirmed the exclusivity of the SRC’s mandate in matters of remuneration of State officers. 83.In the present case, the difficulty arises not from the existence of a foreign service allowance per se, but from the manner in which it is incorporated in the impugned decision. The SRC’s formulation, which subjects payment to “current rates unless subsequently set by SRC”, introduces an element whose origin and content are not disclosed in the material before the Court. In the absence of clarity on what constitutes the “current rates”, the Court is unable to ascertain whether that component of remuneration has been determined by the SRC in accordance with its constitutional mandate, or whether it is derived from an external and unspecified source. 84.Transparency in the setting of remuneration and benefits of State officers is not a peripheral consideration, it is inherent in the constitutional principles governing public finance under Article 201 and the values of accountability and openness under Article 10 and Article 232 of the Constitution. A remuneration structure whose components are not disclosed or are referenced only by undefined external benchmarks falls short of the standard of transparency required in the management of public funds. 85.The SRC’s contention that there is no delegation is correct to the extent that no express transfer of authority to another body has been demonstrated. However, the constitutional concern in this case is not merely formal delegation, but whether the SRC has discharged its obligation to itself determine and articulate the remuneration structure in a manner that is clear, ascertainable, and compliant with Article 230(4)(a). A reference to unspecified “current rates” without evidence of their source or SRC’s determination thereof does not meet that standard. 86.The Court therefore finds that, while the allegation of formal delegation is not established on the evidence, the impugned reference to “current rates” reflects an impermissible lack of clarity in the discharge of the SRC’s constitutional mandate under Article 230(4)(a). To that extent, the SRC has failed to demonstrate that the Foreign Service Allowance component was properly set or reviewed in accordance with its constitutional obligation, and the impugned formulation falls short of the transparency and accountability standards required in the determination of remuneration and benefits for State officers. Whether the SRC's decision setting the remuneration and benefits for the said offices is constitutionally valid, and what orders should issue 87.Having found that the SRC failed to conduct adequate public participation prior to setting the remuneration and benefits for the offices of High Commissioner, Ambassador, and Diplomatic and Consular Representative, and further having found that the SRC unlawfully abdicated its mandate in relation to the Foreign Service Allowance, the Court must now determine the constitutional validity of the decision made on 29th March 2024 as communicated vide the letter dated 24th May 2024. 88.The constitutional infirmities afflicting the impugned decision are manifold and interrelated. First, the decision was made in violation of the requirement for public participation under Articles 10(2) and 201(a) of the Constitution. Second, the process lacked transparency and accountability in respect of a material component of remuneration, namely the Foreign Service Allowance, contrary to Articles 10(2)(c) and 201(a). Third, the SRC, in purporting to adopt “current rates” for the Foreign Service Allowance without determining or disclosing their basis, abdicated its constitutional mandate under Article 230(4)(a). These are not peripheral procedural lapses, they strike at the constitutional architecture governing the determination of remuneration for State officers. 89.The implications of these violations are not merely formal. The impugned decision governs the expenditure of substantial public funds drawn from the Consolidated Fund. It therefore implicates the constitutional imperatives of openness, accountability, and prudent use of public resources. In the absence of disclosure of the Foreign Service Allowance rates, the Court is unable to discern the full remuneration package applicable to the affected State officers, thereby undermining transparency. Further, the absence of adequate public participation deprived the public of an opportunity to interrogate a decision with significant fiscal implications. 90.The Court is guided by the decision in Okiiti & 4 others v Attorney General & 12 others (supra) where the High Court underscored the centrality of the SRC in the constitutional design governing remuneration of State officers. The present case does not concern interference with that mandate by another arm of Government, but rather the SRC’s own failure to discharge that mandate in conformity with constitutional requirements. 91.The Court is equally guided by Salaries and Remuneration Commission & another v Parliamentary Service Commission & 15 others Parliament & 4 others (Interested Parties) [2020] eKLR, where the Court held that a body acting outside the constitutional framework governing remuneration determination acts ultra vires and its decisions cannot stand. The same principle applies with equal force where the SRC itself fails to adhere to the constitutional and statutory safeguards that condition the exercise of its mandate. 92.The Court has also considered whether the defects identified are curable. In respect of public participation, the Court has already found that the process undertaken was not tailored to the specific decision under challenge. Once a constitutionally mandated participatory process has been bypassed in relation to a substantive decision already taken and implemented, the defect cannot be remedied retrospectively. The decision had immediate operational effect from 1st July 2024, and no subsequent process can cure the constitutional breach already committed. 93.The Court further notes that Article 259(8) of the Constitution enjoins State organs to act without unreasonable delay in performing their constitutional functions. The Foreign Service Act, 2021 came into force on 7th December 2021, yet the remuneration framework was only finalised on 29th March 2024. While institutional and economic considerations may explain aspects of administrative delay, no sufficient justification has been placed before the Court to explain the lapse of over two years in operationalising a constitutional and statutory mandate. 94.The Court is not unmindful that the impugned decision was not published in the Kenya Gazette. While, as earlier found, gazettement is not a constitutional precondition for validity in all instances under Article 230(4)(a), the absence of publication remains relevant as an indicator of the broader transparency deficit that characterised the process. Given the fiscal magnitude of the decision, publication in the Kenya Gazette would have served the constitutional values of openness and accountability. 95.In light of the foregoing, the Court finds and holds that the SRC’s decision dated 29th March 2024, as communicated through the letter dated 24th May 2024, is constitutionally infirm and therefore invalid. The decision is accordingly liable to be set aside. 96.The Court, however, bears in mind that the impugned decision has already taken effect and that remuneration has been processed and paid in reliance thereon. In exercising its remedial discretion, the Court is enjoined to fashion orders that uphold constitutional compliance while avoiding unnecessary disruption to public administration. 97.The principle that unconstitutional action must be declared invalid remains foundational. Nevertheless, remedies in constitutional litigation must be crafted in a manner that secures both legality and orderly governance. In Okiiti & 4 others v Attorney General & 12 others (supra), the Court recognised that while unconstitutional acts must be declared as such, the consequences of such declarations may require careful calibration. 98.In the circumstances of this case, the appropriate order is one of invalidity of the impugned decision, accompanied by suspension of the effect of the quashing order for a limited period to enable the SRC to undertake fresh public participation and to regularise the remuneration framework in accordance with the Constitution. During this interim period, continuity in payment of the existing remuneration and benefits shall be maintained solely to avoid disruption in Kenya’s foreign missions. 99.For avoidance of doubt, the SRC shall, within the suspended period, undertake a constitutionally compliant process in respect of all components of remuneration, including the Foreign Service Allowance, which must be expressly determined by the Commission in discharge of its mandate under Article 230(4)(a), and not by reference to unspecified or external “current rates”. 100.Finally, the Court notes the existence of related proceedings in Nairobi HCPT E447 of 2023 concerning the validity of the appointments of the Interested Parties. That matter is distinct from the present Petition, which is confined to the constitutionality of the remuneration-setting process. The pendency of those proceedings therefore does not affect the issues determined herein. Conclusion 101.In conclusion, the Court finds that the Petition dated 14th June 2024 has merit. The SRC failed to conduct adequate public participation prior to setting the remuneration and benefits for the offices of High Commissioner, Ambassador, and Diplomatic and Consular Representative, in violation of Articles 10(2) and 201(a) of the Constitution. The SRC further unlawfully abdicated its mandate under Article 230(4)(a) of the Constitution by failing to determine the Foreign Service Allowance itself and instead referring to unspecified current rates attributed to unknown persons. Consequently, the decision of 29th March 2024 as communicated vide the letter dated 24th May 2024 is hereby declared unconstitutional, null and void. 102.Accordingly, the Court makes the following orders:a. A declaration be and is hereby issued that the 1st Respondent, the Salaries and Remuneration Commission, did not act in accordance with the Constitution when it set the remuneration and benefits for persons holding the State office of high commissioners, ambassadors, and diplomatic and consular representatives of the Republic on 29th March 2024, as notified in its communication dated 24th May 2024.b. A declaration be and is hereby issued that the 1st Respondent did not act in accordance with the Constitution when it delegated responsibility for setting the Foreign Service Allowance, payable to persons appointed to the State office of high commissioners, ambassadors and diplomatic and consular representatives and deployed in foreign missions, to unnamed and unidentified third parties.c. An order of certiorari be and is hereby issued quashing the decision of the 1st Respondent of 29th March 2024, as notified in its letter dated 24th May 2024 and addressed to the Principal Secretary, Foreign Affairs, Ministry of Foreign Affairs and Diaspora Affairs, setting the remuneration and benefits for persons appointed to the State office of high commissioners, ambassadors and diplomatic and consular representatives of the Republic, including the provision for Foreign Service Allowance.d. The quashing order in (c) above is hereby stayed for a period of one hundred and ninety (190) days from the date of this judgment to enable the 1st Respondent to conduct fresh public participation and set the remuneration and benefits for the said offices in accordance with the Constitution and this judgment.e. During the said one hundred and ninety (190) day stay period, the remuneration and benefits as set in the impugned decision may continue to be paid, but the 1st Respondent shall ensure that the foreign service allowance is specifically set by the 1st Respondent and not by reference to unspecified rates.f. Each party shall bear its own costs, given the public interest nature of these proceedings.Orders accordingly. File closed accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KIAMBU THIS 10TH DAY OF JUNE 2026.________________________BAHATI MWAMUYE MBSJUDGEHCCHRPET NO. E297 OF 2024 JDT Page 13 | 13