The Lower Eastern Times Opening The Third Eye
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The High Court has overturned a decision by the Salaries and Remuneration Commission (SRC) that established the pay and benefits for Kenya’s ambassadors, high commissioners, and diplomatic representatives, citing serious constitutional violations.
In a ruling delivered by Justice Bahati Mwamuye, the court found that the SRC breached the Constitution by failing to conduct meaningful public participation prior to approving the remuneration package. Furthermore, the commission was faulted for unlawfully failing to properly determine the Foreign Service Allowance for diplomatic staff.
The judgment officially declares the SRC’s decision—initially made on March 29, 2024, and communicated to the Ministry of Foreign and Diaspora Affairs on May 24, 2024—unconstitutional.
The Core of the Dispute
The legal challenge was initiated by petitioner Eliud Karanja Matindi, who argued that the commission acted in secrecy by failing to involve the public. Matindi also raised concerns over how the SRC vaguely referenced “current rates” for the Foreign Service Allowance without disclosing the methodology behind them.
Justice Mwamuye agreed with the petitioner, noting a critical procedural flaw in the SRC’s timeline:
The public participation exercise relied upon by the SRC was conducted before the job evaluation for the diplomatic positions took place. Consequently, it could not satisfy the constitutional requirement for meaningful public input on the specific package that was ultimately approved.
Additionally, the court found that while the SRC did not formally delegate its constitutional duties, it failed to properly execute them. By deferring to unspecified “current rates” for the allowance rather than independently calculating and demonstrating how those figures were reached, the commission fell short of its mandate.
A Partial Win for the SRC
The court did not agree with all of the petitioner’s claims. Justice Mwamuye rejected the argument that the pay package was invalid due to a lack of publication in the Kenya Gazette. The judge clarified that neither the Constitution nor the Salaries and Remuneration Commission Act mandates gazettement for such decisions to be lawful.
What Happens Next?
To prevent a sudden crisis in Kenya’s international relations, the court has thrown the SRC a temporary lifeline.
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190-Day Window: The court suspended the enforcement of its invalidation orders for 190 days.
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Mission Continuity: During this transition period, current salaries and benefits will continue to be paid out to avoid disrupting operations at Kenya’s foreign missions.
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The Mandate: The SRC must use this time to conduct a fresh, constitutionally compliant public participation exercise and formally calculate the Foreign Service Allowance rather than relying on ambiguous benchmarks.
