Why High Court Quashed SRC Pay Decision for Kenyan Diplomats

The High Court has nullified the Salaries and Remuneration Commission’s (SRC) decision setting the salaries, allowances and benefits of Kenya’s ambassadors, high commissioners and other diplomatic representatives, ruling that the process violated constitutional requirements on public participation.

In a judgment delivered by Justice Bahati Mwamuye, the court found that the SRC failed to conduct meaningful public participation before approving the remuneration package and did not properly determine the Foreign Service Allowance.

The court declared unconstitutional the commission’s decision made on March 29, 2024, which was communicated to the Ministry of Foreign and Diaspora Affairs through a letter dated May 24, 2024.

The case was filed by petitioner Eliud Karanja Matindi, who challenged the remuneration package, arguing that it was approved without adequate public participation. He also faulted the SRC for referring to “current rates” when determining the Foreign Service Allowance without explaining how those rates had been arrived at.

In his ruling, Justice Mwamuye held that the public participation exercise relied upon by the commission took place before the job evaluation for diplomatic positions and therefore did not meet the constitutional threshold for meaningful public participation on the final remuneration package.

The judge further ruled that although there was no evidence the SRC had delegated its constitutional mandate to another entity, the commission failed to properly discharge its responsibilities by relying on unspecified “current rates” for the Foreign Service Allowance instead of independently determining the allowance.

However, the court dismissed the petitioner’s argument that the remuneration package was invalid because it had not been published in the Kenya Gazette.

Justice Mwamuye held that neither the Constitution nor the Salaries and Remuneration Commission Act requires SRC remuneration decisions to be gazetted before taking effect.

Despite quashing the decision, the court suspended the effect of its orders for 190 days to allow the SRC to undertake a fresh public participation process and lawfully determine the remuneration and benefits of Kenya’s diplomats.

During the transition period, the current salaries, allowances and benefits will remain in force to avoid disruption of operations at Kenya’s foreign missions.

The court also directed the SRC to specifically determine the Foreign Service Allowance as part of the fresh process instead of relying on unspecified existing rates.