The Court of Appeal has upheld a landmark ruling affirming that lawyers employed by the National Environment Management Authority (NEMA) and other public bodies are entitled to non-practicing and prosecutorial allowances, as mandated by the Public Service Commission (PSC) Human Resource Policy.
The decision follows an appeal by NEMA challenging an earlier determination by the Employment and Labour Relations Court (ELRC), which ruled that in-house legal counsel in public institutions should receive these allowances. The Law Society of Kenya (LSK), led by President Faith Odhiambo, was an interested party in the case and strongly opposed the appeal, arguing that denying such allowances would unfairly deprive public sector lawyers of their rightful dues.
Court’s Key Findings
One of the primary issues before the Court of Appeal was whether NEMA was bound by the PSC Human Resource Policy and public service circulars governing prosecutorial and non-practicing allowances. The court ruled that, except for specific public bodies listed under Section 3 of the PSC Act No. 10 of 2017, all other public institutions fall under the jurisdiction of the Public Service Commission. As a result, NEMA is not exempt from adhering to PSC guidelines and must pay non-practicing allowances to its legal officers.
On the issue of prosecutorial allowances, the court determined that since NEMA’s legal officers are duly appointed as prosecutors for environmental matters, they are entitled to the same prosecutorial allowances granted to other prosecutors under the Office of the Director of Public Prosecutions (ODPP).
The court further stressed that internal policies developed by public institutions must align with directives from the PSC. Any inconsistencies must be resolved in favor of PSC regulations, ensuring that no public body can independently formulate human resource policies that contradict established public service guidelines.
Significance of the Ruling
The ruling is a major victory for lawyers working in public institutions across Kenya. It sets a precedent requiring all government agencies that have previously withheld non-practicing and prosecutorial allowances from their legal officers to revise their payment structures. Public bodies that fail to comply now risk legal liability for denying statutory dues to their employees.
“This determination is a significant step in ensuring fairness and equity for legal professionals in public service,” said LSK President Faith Odhiambo. “All public bodies must comply with this directive or be prepared to face legal consequences.”
The decision is expected to pave the way for lawyers in other state institutions to claim similar allowances, reinforcing the principle that legal professionals in government service deserve equal treatment and benefits as their counterparts in independent prosecutorial agencies.
With this ruling, legal officers in public institutions can now look forward to receiving their rightful remuneration, a move that strengthens the legal profession within the public service sector
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