The Court of Appeal has reversed decision of the Employment court to award a former member of the National Police Service Commission (NPSC) Sh35 million in form of withheld salaries of four years after he failed to report to work due to ill health resulting from stroke.
A three-judge bench consisting justices Pauline Nyamweya, Aggrey Muchelule and George Odunga substituted the award made to Dr Major (Rtd) Shadrack Mutia Muiu with an order for striking out his petition.
They found that the legal dispute involved interpretation of the Constitution not employment thus, it should have been filed at the High Court division not the Employment and Labour Relations Court.
"The dispute before the learned Judge (Onesmus Makau) was whether the Dr Muiu, whose terms of employment, (which terms include appointment, remuneration and dismissal), were underpinned by the Constitution, could have those terms varied or curtailed, without reference to the Constitution. In our view, the dispute had a constitutional connotation and could not be said to strictly fall under section 12 of the Employment Act," said the judges.
Dr Muiu was appointed by retired President Uhuru Kenyatta to NPSC in October 2012 for a term of six years that was to expire October 2018.
He suffered a stroke in February 2013 during a three-week benchmarking tour to Sweden, United Kingdom and Germany, together with other Commissioners, and he flew back to Kenya. He was admitted at hospital and continued with medication and never reported back to work until his six-year term ended.
He testified that on the flight back to Kenya he was downgraded to Economy Class and his colleagues abandoned him. On arrival he was immediately admitted at Nairobi Hospital and again none of his colleagues visited him and that he was bedridden and has been undergoing medical treatment ever since.
As a result of his continued absence from work, his salary and allowances including medical cover were stopped from March 2014 following the NPSC's letter addressed to the Principal Secretary Treasury.
He considered the withholding of his salary to be unconstitutional and discriminatory.
He sued and on July 2, 2020 Justice Makau quashed the NPSC’s decision to withhold and stop Dr Muiu's salary and benefits. The judge also issued an order compelling the Commission to pay the petitioner a sum of Sh35,145,000 being the amount of his salary withheld from March 2014 to October 2018 when his term of office lapsed.
"The withholding and/or stoppage of the petitioner’s salary and other benefits by the respondents was in contravention of Article 250(8) of the Constitution and as such it was unfair, unconstitutional, null and void by dint of Article 2(4) of the Constitution," said Justice Makau.
NPSC was aggrieved by the decision and filed an appeal arguing that the Judge erred in making an award in favour of Dr Muiu notwithstanding that he had found that the petition was not properly pleaded. It said that the award was not anchored on any provision of the law.
