Court orders NPSC to pay ex-commissioner Sh 45 million for withholding his salary, benefits after he fell ill

A decision by the National Police Service Commission (NPSC) to discontinue a former commissioner’s salary and benefits has cost taxpayers Sh 45 million.

This is after High Court Judge Patricia Nyaundi ruled that it was illegal and unfair for NPSC to take the drastic action without first waiting for the removal of Dr Shadrack Mutai Muiu from office to be concluded.

Justice Nyaundi observed that following the former Military official’s illness in 2013 while on a benchmarking tour in the United Kingdom, a petition was presented before Parliament, after which it was handed to the then President Uhuru Kenyatta, who was to appoint a tribunal.

However, she further noted that the President remained silent.

The judge said that without the removal process being concluded, then Mutai ought to have enjoyed his full benefits and salary for the six years.

She was of the view that the commission acted in an inhumane way as it also withdrew his medical cover.

“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 15, inflicts more than financial harm. It exposes the individual to fear, vulnerability, and indignity at a moment of profound weakness. Our jurisprudence recognises 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,” said Justice Nyaundi.

Major Mutai was appointed as a commissioner on October 2, 2012. His term was to end the same day in 2018.

Nevertheless, in February 2013, while on a tour with other commissioners to Sweden, the United Kingdom and Germany, he suffered a stroke and was admitted at a UK hospital.

He testified that he was flown back to the country on February 13, after which he was admitted at Nairobi Hospital for two weeks.

He was then placed on rest, which hampered his day-to-day activities. Mutai stated that NPSC was fully aware of his medical status.

He narrated that on February 10, 2014, the NPSC’s then chair Johnstone Kavulundi wrote to the Interior Principal Secretary Monica Juma (current Executive Director at the United Nations Office on Drugs and Crime- UNODC) asking that his salary and benefits should be withheld as from March 1, 2014.

 Two months later, it placed him on medical leave and moved a motion for empanelment of a medical board to be convened to determine his ability to hold office.

He said the same did not materialize.

 In September of the same year, the court heard, a petition for his removal was filed by one Samuel Katee, on behalf of the Juhudi Community Centre. NPSC seconded the petition handed to the Parliamentary Committee on Administration and National Security, which then approved the appointment of a tribunal.

 In 2015, he sued the commission before the Employment and Labour Relations Court, which agreed with him. However, his victory was short-lived after the Court of Appeal ruled that he should have taken the dispute to the Constitutional Division of the High Court for the violation of his rights.

While urging the court to dismiss the case, NPSC argued that it was justified to move after nine months’ absence from duty.

Its witness, Peter Leley, stated that it wrote to the National Treasury, which recommended full salary from July 1 to September 20-13, thereafter half salary from October 31 to December 2013, and stopped paying his salary from January 1, 2014.

Leley added that the Head of Public Service also wrote to Mutai on June 23, 2014, asking him to voluntarily resign from office due to his health and the number of hours he was required to vet the police.

He argued that Mutai’s absence was causing the commission challenges in achieving its objectives of police reforms.

At the same time, he argued that the former senior military officer declined to have an independent medical test by the board and failed to resign. Leley said Mutai only worked for four months out of the six-year term.

He also denied that NPSC discriminated against the ex-commissioner.

The Attorney General backed NPSC’s position. She argued that despite Mutai not working, he continued receiving money for over a year since he was taken ill.

The court heard that a person can be removed from office due to mental incapacity or illness. She added that he did not provide evidence to show that he was able and had the capacity to perform his duties, but the removal from office prevented him from doing so.