The Court of Appeal has ruled in favor of in-house lawyers employed by government agencies, affirming their entitlement to non-practice allowances.
The ruling dismissed an appeal filed by the National Environmental Management Authority (NEMA), which sought to deny the payment of these allowances.
Appellate Court Judges Patrick Kiage, Weldon Korir, and George Odonga unanimously rejected NEMA’s appeal, stating that it lacked merit.
“Upon our own re-evaluation of the evidence and our consideration of the law, we find no merit in this appeal which we hereby dismiss in its entirety,” the judges stated.
The case centered on NEMA’s refusal to pay non-practice allowances to its in-house lawyers, with the agency arguing that the payments did not align with its internal policies.
However, the judges ruled that NEMA’s internal policies must conform to the Public Service Commission’s regulations.
“It is our view that since it is the Public Service Commission Act that guides the operations of the appellant, the internal documents generated by the appellant must comply with the documents made by the Commission and where there is inconsistency, the latter must prevail,” the judges said.
The court also criticized NEMA for failing to consult with the Public Service Commission about the entitlements of its in-house lawyers.
“Even after being confronted with the respondents’ claims, the appellant took no action to confirm with the Public Service Commission that fact. It instead adopted an untenable position that the respondents were not entitled to claim the allowances whatsoever,” the judges added.
The judges noted that the in-house lawyers had presented evidence of their entitlement, which NEMA failed to contest effectively.
“That evidence was not controverted since the appellant did not present before the learned Judge figures different from those availed by the respondents,” the court stated.
The ruling confirmed that the Employment Court had correctly determined the amount of non-practice allowances owed to the in-house lawyers.
The judges also referenced a Public Service circular from October 2012, which clearly outlined the amounts payable for prosecutorial allowances.
The Law Society of Kenya (LSK), which participated in the case as an interested party, hailed the ruling as a significant win for public sector lawyers.
LSK President Faith Odhiambo stated, “All public bodies that have hitherto denied their legal officers Non-practicing allowances and other allowances due on account of the nature of their employment must re-evaluate their payment policies or face the risk of legal liability for withholding of statutory dues.”
