The High Court has overturned a decision by the National Treasury to halt payment of fees for professional membership and subscription for government workers.
Professional membership refers to the status granted to individuals who join a professional body or institution within their field.
These memberships come with various benefits, including access to industry-specific information, training, networking opportunities, and a platform to enhance expert development and career development.
Justice Roseline Aburili said the decision was implemented without consulting affected public servants and professional bodies, such as the Law Society of Kenya (LSK), prompting the employees to pay the fees from their own pockets.
“In the court’s view, the failure to engage the affected professionals or their representative bodies fell short of the constitutional and administrative law requirements of procedural fairness,” ruled the judge.
She said withdrawal of the budget was unlawful, effectively restoring the previous practice of government covering the fees payable, including for renewal of professional practicing licenses, to the trade bodies by public servants.
The National Treasury withdrew the payments through a circular dated July 5, 2024, due to budgetary constraints following the youth-led public protests against the government.
Among the austerity measures adopted was a 100 percent cut on membership fees, dues, and subscriptions to trade and professional bodies.
The circular, which was addressed to accountants in the ministries, state departments, and agencies, directed public entities not to pay for professional memberships and subscriptions for their officers during the financial year 2024/2025.
The Treasury cited the need to curb non-essential spending due to budgetary constraints occasioned by the rejection of the Finance Bill, 2024 Act.
Aggrieved by the move, LSK sued claiming that the new directives were irrational and discriminatory as they were imposed on lawyers working within the government without their participation.
They said this violated the Constitution and the Advocates Act, thus amounted to a forceful variation of the in-house lawyers’ contracts without their involvement.
LSK stated that all in-house counsels working in ministries, state departments, and agencies were affected by the new directives, as they were forced to pay for their own practicing licence fees while employed in the public service.
It further argued that its members had consistently had their membership fees dues, and subscriptions to professional and trade bodies paid by their employers and that consequently, the National Treasury’s decision to have a 100 percent cut was an affront to their legitimate expectations.
But National Treasury Principal Secretary Chris Kiptoo informed the court that the rejection of the Finance Bill 2024 resulted in a financing gap of Sh346 billion which was meant to finance the fiscal year 2024/2025 budget estimates.
Justice Aburili found that the decision was unlawful, and it was incumbent upon National Treasury to conduct public participation before issuing directives.
“It is not in dispute that in this case, the Government had over the years consistently paid these subscriptions to professional bodies such as the LSK. That long-standing and repeated conduct gave rise to a legitimate expectation among professional public servants and professional bodies like the LSK that such facilitation would continue and therefore, absent, fair notice and stakeholder engagement was a necessity and a mandatory requirement,” said the judge.
Since the circular effectively shifted the burden of paying statutory practicing fees to individual counsels employed in public service, the court found that this constituted a significant policy shift. As such, those affected needed to be engaged.
The court however found that the National Treasury’s mandate to rationalise expenditure is a legally grounded function meant to promote fiscal sustainability, efficiency, and alignment with national priorities.
“There is no dispute that the National Treasury has the legal authority to rationalise government spending under the Public Finance Management Act, 2012 including issuing expenditure guidance. The Treasury may reprioritize allocations in light of macroeconomic constraints,” she said.
Justice Aburili failed to issue a prohibition order since the circular took effect and has already been enforced covering the period that it was intended to last, during the 2024/2025 financial year which is ending on June 30, 2025.
“On the facts presented before this court, there is no mention or indication that the circular was to remain in place for the subsequent financial years. That being the case and the decision having been implemented, it would be superfluous to prohibit an act that has already taken place. The court cannot reinstate the budget which has since lapsed,” said Justice Aburili.
