The High Court has declared unconstitutional the salaries and benefits approved for Kenya's ambassadors, high commissioners and diplomatic representatives over lack of public participation.
In a judgment delivered by Justice Bahati Mwamuye quashed the remuneration framework approved by the Salaries and Remuneration Commission (SRC) on March 29, 2024 faulting the commission over lack of transparency in the Foreign Service Allowance payable to diplomats serving abroad.
"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," Justice Mwamuye ruled.
The court ultimately declared the SRC's March 2024 decision unconstitutional but suspended the quashing order for 190 days to allow the commission to conduct public participation and independently determine the Foreign Service Allowance.
During that period, diplomats will continue receiving their current salaries and benefits to avoid disrupting public administration.
The judgment arose from a petition filed by UK-based Kenyan citizen Eliud Karanja Matindi, who challenged the legality of the remuneration package adopted by the SRC for Abdi Aden Korio and 65 other serving diplomats who were enjoined in the case as interested parties.
Among the envoys whose remuneration was directly affected by the impugned SRC decision are High Commissioner to Pakistan Lt. Gen. (Rtd.) Peter Mbogo Njiru, Ambassador to Iran Lt. Gen. (Rtd.) Jonah Mwangi, Ambassador to Egypt Fred Outa, High Commissioner to Uganda Joash Maangi, High Commissioner to Canada Caroline Kamende Daudi, High Commissioner to the United Kingdom Catherine Kirumba Karemu, and High Commissioner to Washington DC David Kiplagat Kerich, all of whom took up their State offices under the pay structure the court has now declared unconstitutional.
At the heart of the dispute was SRC's decision of March 29, 2024, communicated through a letter dated May 24, 2024, setting remuneration for ambassadors, high commissioners and diplomatic and consular representatives, positions that had remained without SRC-approved pay since the Foreign Service Act, 2021 took effect.
Matindi argued that SRC never subjected the specific pay proposal to public participation before adopting it, thereby violating constitutional principles of public participation, transparency and accountability.
The court agreed, finding that the stakeholder engagement exercise relied on by SRC had been concluded in July 2023, months before the commission requested job descriptions from the Ministry of Foreign Affairs, evaluated the offices and approved the remuneration structure.
"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," the judge found.
Justice Mwamuye held that meaningful public participation could only occur after the specific remuneration proposal had been developed, noting that members of the public could not comment on proposals that did not yet exist.
The court also faulted SRC's handling of the Foreign Service Allowance after finding that diplomats were to continue earning it at current rates unless subsequently set by SRC without disclosing what those rates were, who determined them or the legal basis for applying them.
"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)," Justice Mwamuye ruled.
However, the court rejected the argument that the remuneration framework was invalid solely because it had not been published in the Kenya Gazette, holding that gazettement is not a mandatory legal requirement for every remuneration decision by SRC.
