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High Court Awards Former NPSC Commissioner KSh45.8 Million After Finding Salary Was Unconstitutionally Stopped During Illness
A retired military officer who suffered a stroke while serving Kenya on official duty has won a landmark constitutional battle after the High Court ruled that the State unlawfully stripped him of his salary and medical benefits while he remained a legally serving commissioner.
In a judgement delivered on July 30, Justice Patricia Nyaundi declared that the National Police Service Commission (NPSC) and the National Treasury violated Dr Major (Rtd.) Shadrack Mutia Muiu’s constitutional rights when they stopped paying him after he became seriously ill, despite never completing the constitutional process required to remove him from office.
The court awarded him KSh35.784 million in withheld salary and KSh10 million in general damages, bringing the total award to KSh45.784 million, excluding interest and costs.
The ruling closes a dispute that has stretched for more than a decade.
It also sends a powerful warning that constitutional commissions cannot sidestep procedures laid down by the Constitution, even when confronted with difficult administrative decisions.
Stroke Changed Everything
Dr Muiu’s troubles began only months after President Mwai Kibaki appointed him as an NPSC commissioner through Gazette Notice No. 14345 of 2012. His six-year constitutional term started on October 2, 2012.
In February 2013, he travelled with fellow commissioners on an official benchmarking mission to Sweden, the United Kingdom, and Germany.
While in Britain, tragedy struck. He suffered a stroke, was admitted to hospital, and was later airlifted to Nairobi Hospital, where specialists recommended prolonged rest, close monitoring, and limited activity.
The Commission received regular updates from his doctors regarding his condition.
What followed became the centrepiece of the constitutional dispute.
After months away from work, the Commission began questioning the prolonged absence.
It sought more detailed medical reports, attempted to convene a medical board, and later asked the National Treasury to stop his salary altogether.
Treasury implemented the request from March 1, 2014.
The Commission simultaneously explored ways to remove him from office.
Its then chairman, Johnstone Kavulundi, wrote to senior government officials seeking his replacement on grounds of ill health.
The Head of Public Service also urged Dr Muiu to resign voluntarily.
Removal Process Stalled
The matter eventually reached Parliament.
In 2015, Simon Katee, acting on behalf of Juhudi Community Support Centre, petitioned the National Assembly to remove Dr Muiu for physical incapacity.
The parliamentary committee agreed the petition disclosed sufficient grounds and recommended that the President appoint a tribunal under Article 251 of the Constitution to investigate the matter.
That tribunal, however, never came.
The president never acted on Parliament’s recommendation.
Consequently, Dr Muiu remained, in law, a commissioner until his constitutional term expired on October 2, 2018.
He had never been suspended under Article 251, nor formally removed from office.
That legal reality ultimately became decisive.
Long Road Through the Courts
After leaving office, Dr Muiu first moved to the Employment and Labour Relations Court, which ruled in his favour in 2020.
The victory proved short-lived.
The Court of Appeal later set aside that judgement, not because it disagreed with its substance, but because constitutional questions touching on the Bill of Rights belonged before the High Court.
Importantly, the appellate judges expressly allowed him to pursue the matter in the proper constitutional forum.
That second attempt culminated in the latest judgement.
Constitution Leaves No Room for Shortcuts
Justice Nyaundi framed the dispute around one central constitutional question.
Could the Commission and Treasury stop the salary of a constitutional commissioner before following the removal procedure established under Article 251?
Her answer was emphatic.
No.
The judge observed that the Constitution creates an elaborate process governing removal of commissioners.
Parliament may recommend removal, but only the President can suspend a commissioner after receiving Parliament’s petition.
Even then, the Constitution expressly provides that a suspended commissioner continues receiving half salary and benefits until a tribunal completes its work.
The Commission and Treasury ignored that framework entirely.
Instead, they resorted to administrative action that the judge found had no constitutional foundation.
Quoting previous constitutional jurisprudence, Justice Nyaundi wrote that the safeguards protecting independent commissions exist precisely to shield them from arbitrary interference.
The Constitution, he observed, leaves no room for “administrative improvisation” where a mandatory constitutional procedure already exists.
“One Cannot Breach the Constitution to Safeguard It”
The respondents defended their actions by arguing they had a constitutional obligation to protect public resources.
They maintained that paying a commissioner who had not worked for years would offend the principles of accountability and prudent use of public funds under Article 232.
The court rejected that argument in unusually direct language.
“One cannot breach the Constitution to safeguard it,” Justice Nyaundi declared, dismissing the respondents’ justification as fundamentally flawed.
The judge reasoned that constitutional fidelity demands adherence to prescribed procedures, particularly where independent constitutional offices are concerned.
Public interest, he said, cannot justify bypassing the Constitution.
Rights Violated
Although Dr Muiu alleged discrimination because of his illness, the court declined to uphold that claim.
Justice Nyaundi held that discrimination requires proof that another person in comparable circumstances received different treatment.
No such evidence had been presented.
The court nevertheless found serious violations elsewhere.
First, it held that stopping the salary and medical cover of an incapacitated commissioner without lawful authority violated the constitutional right to human dignity under Article 28.
The judgement paints a vivid picture of a man recovering from a stroke while simultaneously losing the financial support needed for treatment.
“The facts as presented reveal that while the Petitioner lay on his sick bed, his salary and medical cover were terminated,” the judge observed before concluding that the action diminished his dignity and ignored his vulnerability.
Second, the court found that Dr Muiu’s right to fair administrative action under Article 47 had been breached.
The Commission resolved to stop his pay internally before Treasury implemented the decision.
Yet he received neither prior notice nor an opportunity to defend himself.
Instead, the court found, he was confronted with a fait accompli.
Justice Nyaundi emphasised that constitutional fairness requires notice, reasons, and an opportunity to be heard whenever administrative action adversely affects an individual’s rights.
Legitimate Expectations Dashed
The court also faulted the respondents for frustrating Dr Muiu’s legitimate expectation that they would follow constitutional procedures.
Initially, the Commission sought medical reports, explored an independent medical board, and even encouraged voluntary resignation.
Those steps, the judge said, reasonably suggested the matter would be handled within constitutional boundaries.
Instead, the respondents continued withholding his salary after Parliament had completed its role, the President had failed to appoint a tribunal, and his term had expired.
That conduct, the court held, violated the principles of fairness and predictability expected from public institutions.
Landmark Award
Having found multiple constitutional violations, Justice Nyaundi awarded Dr Muiu every major remedy he sought.
The court declared the decision stopping his salary unconstitutional, quashed the 2014 decision, compelled payment of KSh35.784 million in withheld salary, awarded KSh10 million in constitutional damages, granted costs and ordered interest until payment in full.
In explaining the damages award, the judge stressed that constitutional compensation serves purposes beyond repayment.
It vindicates constitutional rights, affirms the dignity of the victim, and deters future abuses of public power.
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