The Milimani Law Courts in Nairobi.
The High Court has awarded former National Police Service Commission (NPSC) commissioner Major (Rtd) Shadrack Mutia Muiu Sh45.7 million over the unlawful suspension of his salary and medical benefits after suffering a stroke during an official overseas trip.
The court ruled that it was unlawful for the State to stop his salary and medical benefits while he was incapacitated and on sick leave following the illness.
Justice Patricia Nyaundi found that the NPSC and the National Treasury acted outside the Constitution by suspending his pay before completing the process required to remove a commissioner from office.
The judgment settled a dispute that began after Dr Muiu fell ill in February 2013 while travelling with fellow commissioners on a three-week benchmarking mission to Sweden, the United Kingdom and Germany.
Maj Shadrack Muiu Mutia in on October 9, 2012.
Justice Nyaundi ruled that although Parliament later recommended Muiu's removal on health grounds, the President never appointed the tribunal required under Article 251 of the Constitution.
As a result, he remained a commissioner until his six-year term expired in October 2018, making the suspension of his salary unconstitutional.
The court awarded him Sh35.7 million in withheld salary for the 56 months between February 10, 2014 and October 2, 2018, Sh10 million in general damages, costs of the petition and interest. The salary award will be subject to statutory deductions.
Dr Muiu was appointed an inaugural commissioner of the NPSC in October 2012. According to court records, he suffered a stroke while in the United Kingdom during the official trip and was flown back to Kenya on February 23, 2013, before being admitted to Nairobi Hospital.
His cardiologist later advised prolonged rest, remote work and continuous medical care.
The commission later asked the National Treasury to stop paying his salary from March 1, 2014. It also sought to have him examined by a medical board and supported a petition before Parliament seeking his removal on grounds of physical incapacity.
Although the National Assembly recommended the appointment of a tribunal, none was established before his constitutional term ended.
According to earlier court proceedings, Dr Muiu first challenged the salary stoppage before the Employment and Labour Relations Court and initially succeeded in 2020.
The Court of Appeal later held that the constitutional issues belonged before the High Court, leading to the present petition.
Justice Nyaundi found that the commission and the Treasury bypassed the constitutional safeguards protecting members of independent commissions.
"The facts as presented reveal that while the petitioner lay on his sick bed, his salary and medical cover were terminated," the court said.
Justice Patricia Nyaundi.
"One cannot breach the Constitution to safeguard it; constitutional fidelity does not permit shortcuts, pre-emptive sanctions, or administrative improvisation where the Constitution has already provided a clear and mandatory procedure."
The court held that no lawful basis had been shown for suspending Dr Muiu's salary before initiating the constitutional removal process.
"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," the court said
On fair administrative action, the court found Dr Muiu was never informed or heard before his benefits were withdrawn.
"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," the court said.
The court, however, rejected Dr Muiu's claim that he had been discriminated against because of his illness. It held that he had not demonstrated that he was treated differently from other commissioners or public officers in similar circumstances.
Justice Nyaundi stressed that the respondents violated his constitutional rights to human dignity and fair administrative action by withdrawing his salary and medical cover outside the constitutional framework.
"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," the court said.
It concluded that such a decision "diminishes the individual, disregards his vulnerability, and undermines the humane treatment that the Constitution requires of all public bodies."
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