https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11989

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E 393 OF 2025** **BETWEEN** **DR. MAJOR (RTD) SHADRACK MUTIA MUIU………………...PETITIONER** **VERSUS** **THE NATIONAL POLICE** **SERVICE COMMISSION ……………………………………1ST RESPONDENT** **THE NATIONAL TREASURY……………………………...2ND RESPONDENT** **THE ATTORNEY GENERAL………………………………3RD RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. The petitioner moved this court through petition dated 24th June 2025 and supported by his affidavit of even date. The petitioner was appointed by the President of the Republic of Kenya through Gazette Notice No. 14345 of 2012 as a commissioner and member of the 1st respondent for a term of six years commencing on 2nd October 2012 and ending 2nd October 2018. 2. In February 2013, together with other commissioners they went on a three-week bench-marking tour to Sweden, United Kingdom and Germany. While in the United Kingdom, he suffered stroke and was admitted in a UK Hospital. On 23rd February 2013, he was flown back to Kenya and admitted at the Nairobi Hospital for two weeks. He thereafter continued to receive medical care and treatment under a cardiologist consultant based at the said Hospital. 3. It is the petitioner’s case that by a medical report from the said cardiologist, dated 27th February 2013, he was placed on rest, remote activities, and constant medical check-ups and care, in the event symptoms warranted. Further because of this condition, he was unable to move or attend his day-to-day normal life. The 1st respondent was kept apprised on his medical status by the medical team. 4. It is stated that by a letter dated 10th February 2014 addressed to the Principal Secretary of the 2nd respondent, the 1st respondent asked the 2nd respondent to withhold payments of remuneration and benefits to the petitioner, this was effected on 1st March 2014. The 1st respondent relied on the Government of Kenya staff Rules and Regulations as the justification for the said letter. 5. Subsequently, the 1st respondent, on their own motion and through several activities, attempted to have him removed as a commissioner. By letters dated 26th March 2014 and 29th May 2014 the 1st respondent placed him on sick leave, and requested for a medical board to be convened to determine his ability to continue holding office. 6. Through a letter dated 18th December 2014, addressed to the PS Interior, Hon. Monica Juma, the chairperson of the 1st respondent then, Johnstone Kavulundi sought for his removal and replacement on the premise of his ill health, and inability to continue working as a commissioner. The 1st respondent also approached the head of civil service to compel him to resign as a commissioner. 7. Thereafter, in September 2015, a petition for his removal as a commissioner of the 1st respondent on health grounds was lodged to parliament by one Simon Katee on behalf of Juhudi Community Support Centre. This petition was seconded by the 1st respondent and handed to the Parliamentary Committee on Administration and National Security. The chair approved the petition, and recommended the appointment of a tribunal under article 251(4)(b) of the Constitution. 8. It is stated that the parliamentary recommendations on the adopted report for his removal were communicated, by the clerk of the assembly to the chief of staff, for onward transmission to the president to appoint the tribunal. However, no tribunal was appointed and, in the end, he was not removed from office and remained a commissioner for the entire term. 9. The petitioner states that upon the expiry of his term on the 2nd October 2018, he issued a demand letter to the 1st respondent, seeking payment of his withheld salary. Consequently, he instituted Petition No. 115 of 2015 before the Employment and Labour Relations Court against the respondents. The ELRC upheld his petition in a judgment delivered on 2nd July 2020. Upon appeal through Civil Appeal No. E146 of 2021, the decision of the ELRC was set aside, on the premise that the exclusive jurisdiction to interpret the Constitution and Bill of rights under article 165 (3) (b) is with the High Court. The court of appeal allowed him institute a claim against the respondents before the appropriate forum. 10. It is the petitioner’s case that based on the foregoing, the respondents’ actions were an affront to his right to fair administrative action, legitimate expectation, right to equal protection of law, right to human dignity and right to fair labour practices. They were also *ultra vires* their mandate and against public interest. The petitioner contends that as a result of the 1st and 2nd respondents’ actions, he suffered loss. He was deprived of his income and was forced to meet his medical expenses through his pension dues of Kshs. 5,094 per month. His family was faced with great economic hardship. 11. The petitioner seeks the following relief: - 12. **A declaration that the withholding ad/or stoppage of his salary and benefits to his detriment was, without compliance with established constitutional processes, unlawful, unfair and unconstitutional, hence null and void.** 13. **An order of certiorari calling into this Honourable Court for the purposes of quashing forthwith the 2nd respondent’s purported decision to withhold and/or stop the petitioner’s salary and benefits.** 14. **An order of mandamus for the purpose of compelling the respondents to pay the petitioner’s withheld salary and/or accrued salary for the unpaid period of 56 months between 10th February 2014 to 2nd of October 2018 at rate of Kshs. 639,000 pm amounting to Kshs. 35, 784,000.** 15. **General Damages against the respondents for violation, or infringement of his guaranteed constitutional rights, as demonstrated in the petition.** 16. **The respondents to bear the costs of this petition in any event.** **SUMMARY OF THE 1ST RESPONDENT’S RESPONSE** 1. The 1st respondent opposed the petition through replying affidavit sworn by Peter Leley on 31st March 2026. The facts regarding the petitioner’s appointment as a commissioner and his illness are reiterated. It is further stated that although his doctors continued to provide medical updates regarding his health status, they did not contain any formal medical reports to comprehensively explain his necessity to stay off duty for the length recommended. 2. It is stated that after a long period of absence from duty by the petitioner (9 months), the Commission formally wrote to the petitioner’s doctors requesting a comprehensive medical report, to appraise itself of his medical status. The doctors recommended the petitioner stays off duty for an additional six weeks from 4th December 2013. 3. It is contended that the prolonged absence of the petitioner from duty caused deliberations by the Commission which resolved that he placed on sick leave with effect from 1st July 20123 as the Commission pursues his case with the relevant authorities including the Director of Medical Services. Subsequently, the Commission wrote to the National Treasury communicating its resolution. It recommended a full salary from July 1st -September 2013; half salary from 1st October -31st December 2013 and Nil salary from1st January to 30th June 2014. 4. It is stated that the Commission in the letter dated 10th February 2014 to the Principal Secretary- National Treasury, requested that the petitioner’s salary be stopped effective 1st March 2014 as a stop gap measure. It is further stated that the 1st respondent wrote to the Directorate of Medical Services requesting that he convenes a medical board to determine the suitability of the petitioner for his continued service with the Commission. The Ministry of Health authorised the Chairman of the National Medical Board at the National Spinal Injury Hospital to convene a medical board for medical proceedings. 5. Subsequently, the Commission formally notified the petitioner that the National Medical Board would be contacting him to appear before a medical board including the telephone contacts of the liaison officer that would plan for the date of the medical proceedings. On 20th June 2014, the Director of Medical Services wrote to the Commission informing it that they had been unsuccessful in reaching the petitioner. 6. On 23rd June 2014, the Head of Public Service wrote to the petitioner asking him to voluntarily resign from office due to his health as the Commission was engaged in extensive police reforms including vetting which demanded long hours of working that the petitioner could not engage in. The petitioner did not voluntarily resign from office causing the Commission challenges in achieving its strategic objectives of police reforms. 7. On 13th October 2015, the Commission received a letter from the Clerk of the National Assembly seeking its position regarding a Parliamentary Petition lodged by Simon Katee on behalf of Juhudi Community Center seeking the removal of the petitioner due to gross misconduct and/or physical and mental incapacity to perfume the functions of the office. By the time of the petition, the petitioner has been absent from duty for 2 years and 7 months. 8. The Commission responded through letter dated 19th October 2015 concurring with the petition. The petition was considered by the Committee on 22nd October 2015 which found that it disclosed grounds of removal of the petitioner as a commissioner. The Committee recommended that the President appoints a tribunal in accordance with Article 251(5) of the Constitution. Despite this the President never appointed a tribunal. 9. It is contended that by refusing to voluntarily resign and refusing to undergo a medical board examination, the petitioner continued to hold office in absentia due to his physical incapacity to execute these duties. Resultantly, he only served the 1st respondent for a period of four months out of the six-year term. It would therefore be against the principles of public service under article 232 of the Constitution to draw a salary for work never done. 10. It is asserted that by dint of article 249, the 1st respondent is under a constitutional duty to observe constitutionalism by ensuring that there is no wastage of public funds. It is further denied that in discharging the said duty it acted in a discriminatory manner, maliciously or with ulterior motives. It is thus urged that it is in the public interest that the petition be dismissed with costs. **SUMMARY OF THE 2ND AND 3RD RESPONDENT’S RESPONSE** 1. It is contended that the petition does not meet the test of a constitutional petition laid down in the case of **Anarita Karimi Njeru v Republic [1979] eKLR** and emphasised in the case of **Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR**. Apart from citing omnibus provisions of the Constitution, the petition has provided neither particulars of the alleged complaints, nor the manner of alleged infringements. 2. It is stated that the petitioner has admitted that despite not being at work, he continued to receive remuneration for over a year since he was taken ill. Pursuant to Article 251(1)(c) A member of a commission (other than an ex officio member), or the holder of an independent office, may be removed from office only for physical or mental incapacity to perform the functions of office. 3. It is contended that the petitioner has attached documents particularly a letter dated 29th May 2014 in which he was to appear before a medical board. The petitioner has also not adduced evidence showing that he was able and had the capacity to perform his duties and it is the removal from office which prevented him from doing so. 4. It is pleaded that the petitioner has submitted evidence of the Parliamentary Committee that recommended his removal to the president on grounds of his incapacity. It would be an unjust charge on the public coffers to give full pay for the remainder of the term during which the petitioner would not have been able to discharge his duties. This is because the remuneration and benefits of the office that petitioner held are dependent on the member’s ability to perform his duties. 5. The respondents aver that when the petitioner took up his appointment, there was a legitimate expectation that he would be able to perform the duties and functions attached to membership of the 1st respondent. It is urged that the petition be dismissed as against the 2nd and 3rd respondents. **SUMMARY OF THE PETITIONER’S SUBMISSIONS** 1. The petitioner asserts that his petition satisfies the standard in *Anarita Karimi case.* It expressly pleads the constitutional articles alleged to have been violated; the factual basis for each alleged violations have been pleaded with precision and the reliefs sought, are specific and tethered to the violations pleaded.The petition relies on the decision **in Mumo Matemu v Trusted Society of Human Rights Alliance & Others [2014] eKLR; Trusted Society of Human Rights Alliance v Attorney General & 2 others [2012] eKLR and Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR** to buttress that argument that the rule in Anarita should not be applied rigidly. 2. The petitioner cites article 250 (7) and (8) of the Constitution and the decisions in **Republic v Kenya National Human Rights Commission & Anor [2012] eKLR; Katiba Institute bv Law Society of Kenya & Another [2015] eKLR; Law Society of Lenya & Another v National Assembly & Others; Warsame & Others (Interested Parties) [2018] KEHC 8892 and Law Society of Kenya V Attorney General & Another; Warsame & Another [2019] KEHC 10881** for the contention striping his salary undermines his independence and by extension that of the 1st respondent itself. 3. It is submitted that neither the National Police Service Commission Act, the Constitution, nor any other law vests in the 1st respondent the power to vary, suspend, withhold or stop the payment of remuneration and benefits of a Commissioner of a Constitutional Commission. That while the 1st respondent cited Government of Kenya Staff Rules and Regulations as contained in section (8) Clause 1(i) of the Civil Service COR as the basis for its decision, this is not legally feasible. This is because, the petitioner was a state officer within the meaning of article 260 of the Constitution and was therefore governed by the Constitution. 4. It is asserted that the only constitutional mechanism by which the remuneration of a commissioner can be affected is by the suspension or removal of the Commissioner. The removal it is argued, is an exclusive presidential prerogative, exercised only after a petition passed by Parliament and a tribunal established under Article 251 of the Constitution has made a binding recommendation. The ELRC Court found that the actions of the respondents were unlawful. 5. It is urged that the petitioner’s removal process as pleaded in the petition was a constitutional nullity. He wasnever removed from office. No Tribunal was ever established by the President. Parliament adopted a committee recommendation on 28th October 2015, but the President never acted on it. Hence, he served his full term as a Commissioner until 2nd October 2018. The petitioner therefore served his full term as a commissioner until 2nd October 2018. The legal consequence is that he was a serving Commissioner from 2nd October 2012 to 2nd October 2018; his remuneration was a charge on the Consolidated Fund which constitutionally inalienable and its stoppage was by dint of article 2(4) void. 6. According to the petitioner, the arguments regarding public interest militates against the dictates of article 250(8) of the Constitution. It is contended that respondents are themselves creatures of the Constitution and therefore bound by it in everything they do. The public interest it is argued, is that the Constitution be upheld. Reliance is placed on the decisions in the **Communications Commission of Kenya & 5 others v Royal Meda Services Limited & 5 others [2014] eKLR; Republic v Kenya National Human Rights Commission [2012] eKLR and County Assembly of Kisumu v Kisumu County Assembly Service Board & others [2015] Civil Appeals Nos. 17 & 18 of 2015.** 7. The petitioner submits that the respondents ignore the fact that he fell ill while on official duty and that penalising him for that illness is not only unjust but also discriminatory. In any event, the 1st respondent continued to receive its budgetary allocation and all its commissioners continued to earn their salaries throughout the period. 8. It is asserted that by virtue of the aforesaid, the stoppage of the petitioner’s salary was a direct violation of articles 250(7) and (8) of the Constitution. It was a further violation of his right to legitimate expectation and his rights guaranteed under articles 47, 27, 28 and 41 of the Constitution. He relies on the decisions in **Kanda v Government of Malaya [1962] AC 322; Dodhia v National & Grindlays Bank Ltd [1970] EA 195; Wilfred Mbith Jason v National Polce Service Commission [2016] Petition No.409 of 2015; Minister of Finance v Van Heerden [2004] ZACC 3 and S v Makwanyane [1995] ZACC 3** among others. 9. The petitioner asserts that the petition is not an abuse of the court process as alleged in light of the ELRC and Court of Appeal decision and that limitation does not apply to constitutional petitions unless expressly provided. The petitioner cites article 23, and 165 (3) (b) of the Constitution and the decision **in Petition No. 14 of 2014 in the Matter of the Principle of Gender Representation in the National Assembly and Senate and Harun Thungu Wakaba v Attorney General [2013] eKLR**that he is entitled to all withheld salary and benefits for a period of 56 months amounting to Kshs. 35, 784,000 and general damages of Kshs. 10,000,000 **SUMMARY OF THE 1ST RESPONDENT’S SUBMISSIONS** 1. The 1st respondent contends that owing to the petitioner’s situation as pleaded in its replying affidavit, it was prudent to make the decision as it did. This is becausein performing its duties it is bound by the dictates of article 10 and 232 of the Constitution. Particularly, good governance, integrity, transparency, accountability, high standards of professional ethics among others. 2. The 1st respondent relies on the decision of **Judicial Service Commission v Salaries and Remuneration Commission & another [2018] KEHC 4765 (KLR)** for the contention that the independence of Constitutional Commissions such as the 1st respondent not only limited to political independence but the independence extends to the decisions it makes with regard to its own operations and administration. Accordingly, this is one of the instances where the commission exercised its operational and administrative independence by writing to the National Treasury communicating its resolution detailing the petitioner’s sick leave and seeking implementation of the stop gap measure. 3. While placing reliance on the decision **in Communications Commission of Kenya & 5 others v Royal Meda Services Ltd & 5 others [2014] eKLR** the 1st respondent asserts that it was acting within its Constitutional and statutory mandate in managing the petitioner’s situation. This aligned with its mandate with the provisions of article 73 and 249 of the Constitution. 4. Further while conceding that article 250(8) exists to shield Commissioners from arbitrary financial manipulation capable of undermining their decisional independence, it is urged that the constitutional guarantee was never intended to insulate every administrative consequence arising from prolonged incapacity or to require the expenditure of public funds irrespective of the Commission’s current constitutional obligations under articles 10, 73, 201 and 232. 5. The 1st respondent invites the court to make a purposive interpretation of article 250(8) of the Constitution. It argues that a purposive interpretation will find that the said article is to protect Commissioners from financial coercion and executive manipulation by way of retaliatory interference with their remuneration and benefits, which was not the case in the instant circumstances. 6. It is reiterated that the petitioner fell ill, and was unable to return to work for an extended period of time. He was invited to attend the National Medical Board for an independent assessment of his medical condition but did not honour. No comprehensive medical reports were ever availed to the Commission to explain his absence from work and shed light on his condition. It was therefore prudent for the 1st respondent to make an objective decision as a constitution commission within the dictates of articles 10, 73, 201 and 232 of the Constitution. 7. The 1st respondent relies on the decision in **In the Matter of Kenya National Commission on Human Rights [2014] eKLR** and invites the court to apply a purposive and holistic interpretation of article 250(8) of the Constitution by not interpreting it in isolation from articles 10, 73, 201 and 232 of the Constitution. It hence urges the court to find that it did not violate articles 250 (7) and (8) of the Constitution in making the decision regarding the petitioner’s remuneration. 8. It is submitted that the constitutional violations have not been substantiated. While the petitioner alleges violation of article 47 of the Constitution, sufficient evidence has been provided of the communication between the petitioner and the 1st respondent. It is also submitted that the petitioner has failed to establish how he was discriminated on the grounds of his health status. Article 251(1)(c) provides that one of the grounds of removal of a member of a Constitutional commission or a holder of independent office is physical or mental incapacity. 9. That while the petitioner alleges violation of right to human dignity, the annexures in the 1st respondents replying affidavit tells a different story. The commission showed compassion to him by giving him an opportunity to recover from March to June 2013 with full pay and then giving him sick leave effective 1st July 2013. It continued engagement with the petitioner and even sought to facilitate his medical assessment to justify his absence and establish of his physical incapacity. Finally, it pursued lawful institutional mechanisms to remedy the Constitutional crises it found itself in. 10. On legitimate expectation, the 1st respondent relies on the decision in Communications Commission of **Kenya & 5 others v Royal Media service Ltd & 5 others [2014] KESC 53 (KLR)** and argues that a public authority cannot act contrary to the Constitution, statute or public law duties. It is urged that the petition be dismissed with costs. **ANALYSIS AND DETERMINATION** 1. Having considered the pleadings and submissions filed herein, I frame the issues for determination as follows- 2. Whether the petition meets the threshold for a constitutional petition 3. Whether the petitioner’s rights under articles 27, 28, 47 and 250 (7) and (8) of the Constitution were violated 4. Whether the petitioner is entitled to the relief sought ***Whether the petition meets the threshold for a constitutional petition*** 1. The test for a constitutional petition is premised on satisfaction of the specificity and precision requirement while drafting the petition. This was established by Court in **Anarita Karimi Njeru vs Republic (1979) KLR 154 and** affirmed in **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR** as follows: **“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”** 1. Further the Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR**stated as follows: **“[349] …. Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. principle emerges clearly from the High Court decision in Anarita Karimi** **Njeru v. Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement…”** 1. The gravamen of this Petition is the suspension of the Petitioner’s salary and benefits during a period in which he had fallen ill and was unable to discharge the functions of his office as Commissioner of the National Police Service Commission. The record shows that following his illness, a Petition was lodged before the National Assembly seeking his removal pursuant to Article 251 of the Constitution. Parliament considered the matter, supported his removal, and transmitted its report to the President recommending the establishment of a tribunal under Article 251(4)(b). The President did not act on that recommendation, leaving the constitutional process incomplete and the Petitioner formally still in office. 2. Prior to the parliamentary process, and at the behest of the 1st Respondent, the 2nd Respondent suspended the Petitioner’s salary and benefits with effect from 1st March 2014. That suspension endured for the remainder of his tenure. Upon the expiry of his term on 2nd October 2018, the Petitioner demanded payment of all withheld remuneration, asserting that he had never been lawfully removed from office and therefore remained entitled to the full emoluments of a Commissioner for the duration of his constitutionally‑protected term. 3. The Petition therefore rests on two interlocking acts, the unilateral suspension of the Petitioner’s salary and benefits, and the President’s failure to establish a tribunal as constitutionally required. The Petitioner contends that these actions, taken together, constitute an unlawful derogation from the constitutional safeguards governing the tenure and removal of members of independent commissions. He asserts violations of fair labour practices, fair administrative action, human dignity, and protection from arbitrary deprivation of property. 4. In my view, the framing of the issues for determination is faithful to the constitutional architecture and demonstrates the requisite analytical clarity. The Petitioner identifies with specificity the impugned actions, the constitutional provisions allegedly violated, and the remedies sought. This is precisely the level of particularity demanded by the celebrated **Anarita Karimi Njeru decision**, now codified in Rule 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 5. Accordingly, I affirm that the Petition meets the precision test. The Petition is therefore properly before this Court for substantive adjudication ***Whether the petitioner’s rights under articles 27, 28, 47 and 250 (7) and (8) of the Constitution were violated*** 1. The Petitioner alleges that the respondent actions discriminated against him on account of his ill health. The Supreme Court in **Gichuru v Package Insurance Brokers Ltd (Petition 36 of 2019) [2021] KESC 12 (KLR) (Civ) (22 October 2021) (Judgment)** guided as follows: **“[47] This court had occasion to lay emphasis on the burden of proof in cases of discrimination in the case of Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR where the Supreme Court applied Section 108 of the Evidence Act in requiring the claimant to prove his claim in a matter involving discrimination. The court also grappled with the issue of direct and indirect discrimination. The court observed thus:** **“ [49] Section 108 of the Evidence Act provides that, “the burden of proof in a suit or procedure lies on that person who would fail if no evidence at all were given on either side;” and section 109 of the Act declares that, “the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”** **[50] This court in Raila Odinga & others v Independent Electoral & Boundaries Commission & others, Petition No 5 of 2013, restated the basic rule on the shifting of the evidential burden, in these terms:** **“…a petitioner should be under obligation to discharge the initial burden of proof before the Respondents are invited to bear the evidential burden….”** **[51] In the foregoing context, it is clear to us that the petitioners, in the instant case, bore the overriding obligation to lay substantial material before the court, in discharge of the evidential burden establishing their treatment at the hands of 1st respondent as unconstitutional. Only with this threshold transcended, would the burden fall to 1st respondent to prove the contrary. In the light of the turn of events at both of the superior courts below, it is clear to us that, by no means, did the burden of proof shift to 1st respondent.”** **[48] Black’s Law Dictionary, 10th Edition defines discrimination as “failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.” However, it must be appreciated that not all cases of distinction amount to discrimination.”** 1. The Court went on further to observe that: **“[50] In equal measure, we adopt the definition of discrimination in the High Court case of Peter K Waweru v Republic [2006] eKLR as follows:** **“Discrimination means affording different treatment to different persons attributable wholly or mainly to their descriptions by race, tribe, place of origin or residence or other local conviction, political opinions, colour, creed, or sex, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.** **Discrimination also means unfair treatment or denial of normal privileges to persons because of their race, age, sex .... a failure to treat all persons equally where no reasonable distinction can be found between those favoured and those not favoured.”** **[51] From the above definitions, it is clear that discrimination can be said to have occurred where a person is treated differently from other persons who are in similar positions on the basis of one of the prohibited grounds like race, sex disability etc or due to unfair practice and without any objective and reasonable justification.”** 1. In light of the foregoing analysis, I am unable to find that the Petitioner has demonstrated a violation of the constitutional guarantee prohibiting discrimination under Article 27. On the material before the Court, no comparator has been identified, nor has the Petitioner shown that the Respondents singled him out for differential treatment because of his illness or any other protected characteristic. 2. The Petitioner’s narrative establishes that adverse administrative action was taken against him, but it does not establish that such action was taken in a manner that distinguished him from other Commissioners or public officers facing comparable circumstances. The record is devoid of evidence demonstrating that the suspension of salary was applied selectively, or that the Respondents adopted a standard for him that was not applied to others in analogous positions. Without such demonstration, the constitutional threshold for proving discrimination is not met. 3. The Petitioner contends that the actions of the respondent occasioned a violation of his right to human dignity contrary to Article 28 of the Constitution. 4. In the case of **Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR** the court reflected on the right to dignity thus; **“50. As regards the right to dignity, in Ahmed Issack Hassan vs. Auditor General [2015] the Court held that:** **“…the right to human dignity is the foundation of all other rights and together with the right to life, forms the basis for the enjoyment of all other rights…put differently thereof, if a person enjoys the other rights in the Bill of rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated”. See Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) SCR (2) 516.”** 1. Mativo J. (as he then was) emphasised the centrality of the right to dignity in the case of **M W K another v Attorney General & 3 others [2017] eKLR**where he cited with approval the South African case of **S v Makwanyane** [**[1995] ZACC 3**](http://www.saflii.org/za/cases/ZACC/1995/3.html)**;**[**1995 (3) SA 391**](http://www.saflii.org/cgi-bin/LawCite?cit=1995%20%283%29%20SA%20391)**(CC) in para [328],** O'Regan J pointed out that "without dignity, human life is substantially diminished" and pronounced the prime value of dignity in the following terms:- **“The importance of dignity as a founding value of the ... Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. The right is therefore the foundation of many of the other rights that are specifically entrenched in Chapter 3.”** 50. O’Regan J drew attention to the centrality of human dignity as a constitutional value when he stated:- **“Human dignity … informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. ... dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”** 1. In **Francis Mulomba Nguyo v Nation Media Group Limited & 2 others [2021] eKLR**, Korir J, stated with regards to article 28 of the Constitution; **“47. In regard to the claim that the Petitioner’s right to human dignity was violated by the respondents’ actions, I rely on the statement in Dawood v Minister of Home Affairs, [2000] (3) SA 936 (CC), as cited at paragraph 132 of the Supreme Court case of Martin Wanderi & 106 others v Engineers Registration Board & 10 others [2018] eKLR, that:** **“Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. . . dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”** **48. The Supreme Court interpreted the cited paragraph to mean that “the right to dignity [is] at the core of a violation of other fundamental rights and freedoms.” In other words, where it is established that a right under the Constitution has been infringed upon, then the infringement of the right to human dignity under Article 28 is highly likely to have also occurred. In this case, I have found that the Petitioner’s right to privacy was infringed upon by the actions of the respondents and it therefore follows that his right to human dignity was also violated** 1. The facts as presented reveal that while the Petitioner lay on his sick bed, his salary and medical cover were terminated, thereby depriving him of the basic means necessary to preserve personal autonomy, selfworth, and bodily integrity. This action was taken by the 2nd Respondent before initiating the constitutional process for the removal of a commissioner as prescribed under Article 251 of the Constitution. The Respondents urge that the decision was made to safeguard the values and principles of public service under Article 232. That justification cannot stand. One cannot breach the Constitution to safeguard it; constitutional fidelity does not permit shortcuts, preemptive sanctions, or administrative improvisation where the Constitution has already provided a clear and mandatory procedure. 2. No rationale has been offered to explain why the Respondents acted preemptively, or why they elected to suspend the Petitioner’s salary and medical cover in February 2014 without first triggering the removal mechanism under Article 251. The absence of any lawful foundation for the action, coupled with the Respondents’ failure to adhere to the constitutional process, renders the decision *mala fides*. It was not an act grounded in constitutional duty, administrative necessity, or statutory authority. It was an act taken in disregard of the Petitioner’s rights and in defiance of the constitutional safeguards governing the tenure of Commissioners. 3. In those circumstances, I find that the Respondents violated the Petitioner’s right to dignity under Article 28. The Constitution demands that public power be exercised in a manner that respects the inherent worth of every person. Terminating a commissioner’s salary and medical cover while he is incapacitated, and doing so outside the constitutional framework, is conduct that falls short of that standard. It diminishes the individual, disregards his vulnerability, and undermines the humane treatment that the Constitution requires of all public bodies. 4. The Petitioner also contends that the decision to terminate his salary and benefits was taken without safeguarding his right to fair administrative action. In **Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another [2018] eKLR**, the Court observed that; **35. The Constitution is the Supreme law of the Republic and decrees as such in Article 2(1). It binds all persons and all state organs in the course of performing their duties. The provisions in Article 47 to the extent that they require that an administrative action to be expeditious, fair, lawful and reasonable, and that where such an action adversely affect a person’s right or fundamental freedom, the affected person is entitled to be given written reasons for the action, is a constitutional control over administrative bodies to ensure that they do not abuse their power and that individuals concerned receive fair treatment when actions are taken against them. Failure to observe this constitutional decree, for all intent and purposes, undermines the rule of law and the value of Article `19(1) of the Constitution which states that the Bill of Rights is an integral part of Kenya’s democratic state as the framework for social, economic and cultural policies...”** **40.Taking the above jurisprudence into account, there is no doubt in my mind, that acting as it did, the respondent violated 1st petitioner’s right to a fair Administrative Action contrary to Article 47 of**[**the Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**. Administrative Actions that flow from statutes, must now meet the constitutional test of legality, reasonableness and procedural fairness. According a party a hearing before taking action against him is no longer discretionary. It is firmly entrenched in our Constitution as an inviolable right. It is an important safeguard against capricious and whimsical actions that lead to abuse of authority by public bodies exercising administrative and quasi-judicial functions. These no longer have place in our constitutional dispensation.** 1. In the decision in **Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others [2016] KECA 729 (KLR**) discussing the right to fair administrative action under articles 47, stated; **45.Under Article 47 (2) of the Constitution as read with the provisions of the Fair Administrative Actions Act of 2015, the common law position that there is no duty to give reasons for administrative decision is no longer a general principle of law in Kenya. A shift has taken place and there is requirement to give reasons for administrative decisions. (See also Section 45 (2) (a) and (b) of the Employment Act No. 11 of 2007). In Judicial Service Commission -v- Hon. Justice Mutava Mbalu, Civil Appeal No. 52 of 2014, Githinji JA in considering the duty to give reasons for administrative action in light of Article 47 (2) of the Constitution expressed that reasons for decision should be given as a matter of right where a right under the Bill of Rights has been or is likely to be adversely affected by the administrative action and not otherwise; that the right to be given written reasons for the decision can be limited by law for a reasonable and justifiable cause.** **46.Article 47 (2) of the Constitution as read with Sections 4 (3) (d) and 5 (d) (i) and 6 (2) (a) and 6 (4) of the Fair Administrative Action Act require written reasons for administrative decision. Section 6 (1) as read with Section 6 (2) (a) of the Act stipulates that every person materially or adversely affected by any administrative action has a right to be supplied with such information as may be necessary and such information shall include reasons for which the action was taken and any relevant documents relating to the matter. Sections 3(d), 5 (d) (i) and 6 (2) (a) and 6 (4) of the Fair Administrative Act encompass a statutory obligation upon decision-makers to give written reasons for their decisions. This contrasts with common law that had stopped short of requiring reasons for all administrative decisions.** 1. The record shows that the 1st Respondent convened a Commission meeting, adopted a resolution, and communicated its decision to suspend the Petitioner’s salary and benefits to the 2nd Respondent. The 2nd Respondent, without pause or inquiry, acted on that recommendation and effected the suspension. At no point was the Petitioner notified, invited to make representations, or afforded any opportunity to participate in the administrative process that culminated in the termination of his salary and medical cover. 2. Article 47 demands that administrative power be exercised with fairness, transparency, and respect for the individual’s right to be heard. The Respondents’ conduct fell well short of that standard. 3. The right to fair administrative action is a concrete guarantee that protects individuals from arbitrary, unexplained, and unilateral exercises of state power. When a public body or official makes a decision that adversely affects a person’s rights, livelihood, or dignity, the Constitution requires that the affected person be given notice, reasons, and an opportunity to respond. The Petitioner received none of these. Instead, he was confronted with a fait accompli, his salary and medical cover terminated while he lay ill, without any semblance of procedural fairness. I find therefore that the right of the respondent’s right to fair administrative action was violated. 4. The Petitioner contends that he had a legitimate expectation that public officials would perform their roles in the manner prescribed under the Constitution. The Supreme Court in the decision in **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR)** set out the ingredients to be met when establishing a case for legitimate expectation. It stated; **[265] An instance of legitimate expectation would arise when a body, by representation or by past practice, has aroused an expectation that is within its power to fulfil. A party that seeks to rely on the doctrine of legitimate expectation, has to show that it has locus standi to make a claim on the basis of legitimate expectation** **[268]An illuminating consideration of the concept of “legitimate expectation” is found in the South African case,South African Veterinary Council v. Szymanski 2003(4) S.A. 42 (SCA) at [paragraph 28]: the Court held as follows:** **The law does not protect every expectation but only those which are 'legitimate'. The requirements for legitimacy of the expectation include the following:** **i.The representation underlying the expectation must be 'clear, unambiguous and devoid of relevant qualification': De Smith, Woolf and Jowell (op cit [Judicial Review of Administrative Action 5th ed] at 425 para 8-055). The requirement is a sensible one. It accords with the principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril.** **(ii)The expectation must be reasonable: Administrator, Transvaal v. Traub (supra [1989 (4) SA 731 (A)] at 756I - 757B); De Smith, Woolf and Jowell (supra at 417 para 8-037).** **ii.The representation must have been induced by the decision- maker: De Smith, Woolf and Jowell (op cit at 422 para 8-050); Attorney- General of Hong Kong v. Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h - j.** **iii.The representation must be one which it was competent and lawful for the decision-maker to make without which the reliance cannot be legitimate: Hauptfleisch v. Caledon Divisional Council 1963 (4) SA 53 (C) at 59E - G.”This was also referred to with approval in Walele v. City of Cape Townand Others; 2008 (6) S.A 129 (C.C.) paragraph 41.** **[269]The emerging principles may be succinctly set out as follows:** **a.there must be an express, clear and unambiguous promise given by a public authority;** **b.the expectation itself must be reasonable;** **c.the representation must be one which it was competent and lawful for the decision-maker to make; and** **(d)there cannot be a legitimate expectation against clear provisions of the law or the Constitution.** 1. The chronology of events reveals a marked departure from the constitutional discipline initially exhibited by the Respondents. When the Petitioner first fell ill, the 1st Respondent reached out to him and his doctors, seeking clarity on his condition and exploring a structured path toward resolution. A medical board was identified as the appropriate forum to assess his fitness to continue serving. When that process stalled, the 1st and 2nd Respondents advised the Petitioner to consider voluntary resignation. These engagements, however difficult, would reasonably have led the Petitioner to believe that the Respondents intended to proceed within the bounds of due process. The early posture suggested adherence to constitutional norms; the later conduct betrayed that expectation. 2. A Petition was thereafter lodged before Parliament. The National Assembly considered it, made its recommendation, and transmitted the matter to the President. The President did not act. In the face of that constitutional impasse, the legitimate expectation was that, upon the expiry of the Petitioner’s term, the 1st and 2nd Respondents would release the withheld salary and benefits. Instead, they took an action that finds no footing in law: they continued to withhold the Petitioner’s salary even after the constitutional process had stalled, and his term had ended. That conduct violated the Petitioner’s right to legitimate expectation, a principle rooted in fairness, predictability, and the constitutional demand that public bodies act consistently and transparently. 3. It is common ground that the terms of office of a commissioner of an independent commission are governed by Chapter Fifteen of the Constitution. The grounds and procedure for the removal of a commissioner, including on account of physical or mental incapacity to perform the function of the office and any suspension of salary or benefits, is strictly regulated under Article 251. Article 251(4)(a) vests the power to suspend a Commissioner exclusively in the President, and only upon receipt of a Petition from the National Assembly. Article 251(7) further provides that during such suspension, a Commissioner is entitled to half salary and benefits. These provisions are clear, deliberate, and exhaustive. They leave no room for administrative improvisation or unilateral action by the Respondents. 4. In **Attorney General & 2 others v Okoiti & 14 others [2020] KECA 30 (KLR)** the Court of Appeal rendered its mind on this issue as follows: - **4.Pursuant to Article 249(2), the Commission is subject only to**[**the Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**and the law and is independent and not subject to the direction or control of any person or authority. The remuneration and benefits payable to, or in respect of the members of the Commission are a charge on the Consolidated Fund and cannot be varied to the disadvantage of the member during his or her term of office. (See Article 250 (7) and (8)). Article 250 (6) (b) bars members of the Commission, from holding any other office or employment for profit, whether public or private.** **5.Once appointed to office, members of the Commission enjoy security of tenure and cannot be removed from office except for the specific grounds set out in Article 251 of**[**the Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**, namely serious violation of**[**the Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**or any other law, gross misconduct whether in the performance of duty or otherwise, physical or mental incapacity to perform the functions of the office, incompetence or bankruptcy.**[**The Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**prescribes a specific procedure for removal of a member of the Commission, which is largely similar to the procedure for removal of a judge of the Superior Courts. Upon receiving a petition for the removal of a member of the commission and being satisfied that it is merited, the National Assembly refers the same to the President, who in turn is required to appoint an independent tribunal to investigate the matter and make recommendation to the President. Under Article 251(6), the recommendations of the Tribunal are binding.** 1. In constitutional litigation, general damages serve a distinct and principled purpose: they vindicate the breach of a right, affirm the inherent worth of the claimant, and signal that constitutional guarantees are not hollow aspirations but enforceable commitments. Our courts have repeatedly underscored that damages in constitutional petitions are not merely compensatory; they are restorative and declaratory. In **Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR)**, the Court of Appeal held that constitutional damages “are meant to vindicate the rights violated and to recognize the importance of the right in our constitutional framework.” Similarly, in **MWK & another v Attorney General & 4 others; Independent Medical Lega Unit (IMLU) (Interested Party); The Redress Trust (Amicus Curiae) [2017] KEHC 1496 (KLR)**, the High Court emphasized that such damages must reflect both the gravity of the violation and the need to deter future infringements. When the State acts in a manner that diminishes a person’s dignity, the award of damages becomes a constitutional affirmation that the individual’s humanity is inviolable and that public power must never be exercised in a manner that degrades or humiliates. 2. In this instance, the violation strikes at the core of human dignity. Terminating the medical cover of a person who is ill, particularly a constitutional office holder whose tenure is protected by Chapter Fifteen, inflicts more than financial harm. It exposes the individual to fear, vulnerability, and indignity at a moment of profound weakness. Our jurisprudence recognizes that dignity is not an abstract value; it is lived and felt, dignity is “the anchor of all rights,” and any action that strips a person of the means to preserve bodily integrity and self‑worth constitutes a serious constitutional injury. It is my finding therefore that general damages are warranted herein. 3. Consequently, I find that the Petition succeeds and make the following orders, 1. A declaration hereby issues that the decision and action of the Ist and 2nd Respondent to withhold and or stop the salary and benefits of the Petitioner was unconstitutional and therefore null and void 2. A declaration hereby issues that the stoppage and suspension of the salary of the Petitioner, violated his rights under Article 28, 47 of the Constitution 3. An order of Certiorari is hereby issued removing into this court and quashing the decision of the 1st and 2nd Respondents to stop the salary and benefits of the Petitioner by letter dated 10th February 2014 4. An order of Mandamus hereby issues compelling the 1st and 2nd respondent to pay to the Petitioner the withheld and accrued salary for the period between 10th February 2014 to 2nd October 2018 amounting to Kshs 35, 784,000 , subject to statutory deductions 5. General damages in the sum of Kshs 10 million to be paid to the Petitioner 6. Costs of the Petition awarded to the Petitioner 7. Interest on (d), (e) from the date of judgment until payment in full **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF JULY 2026.** **P. M. NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Thuita for Petitioner Ms. Kasayian for 1st Respondent Ms. Mwasao for 2nd & 3rd Respondent