The Constitution of Kenya

Chapter XI: Transitory

124

Effects of Chapter.

125

Appeals in Respect of Benefits .

126

Repeal to Certain Decisions affecting Pensions.

TRANSITORY

124. This Chapter shall have effect notwithstanding the foregoing provisions of this Constitution, and accordingly, if
any such provision is inconsistent with a provision of this Chapter. the provision of this Chapter shall prevail. 

125. (1) This section shall have effect for the purpose of enabling an officer to whom this section applies or his
per'. sonal representatives to appeal against any of the following decisions- 
(a) a decision of the Public Service Commission to give such concurrence as is required by section 113 (1) or (2) in
relation to the refusal, withholding, reduction in amount or suspending of any pensions benefits in respect of such an
officer's service as a public officer: 
(b) a decision, whether of a Commission established by this Constitution or some other person or authority. to
remove such an officer from office if the con-sequence of the removal is that any pensions benefits cannot be
granted in respect of the officer's service as a public officer; or 
(c) a decision, whether of a Commission established by this Constitution or some other person or authority, 
· to take some other disciplinary action in relation to 
· such an officer if the consequence of the action is, or in the opinion of the Commission or other person or
authority taking the decision might be, to reduce the amount of any pensions benefits that may be 
· granted in respect of the officer's service as a public officer. 
(2) In the fo~llowing pnov~i~ns of lids seotl~xi, references to the Commission shall be construed- 
(a) in relation to a decision referred to in subsection (I) (a), as references to the Public Service Commission; 
(b) in relation to a decision referred to in subsection (1) (b) or (c), being a decision taken by a Commission
established by this Constitution, as references to that Commission; and 
(c) in relation to a decision referred to in subsection (1) (b) or (c), being a decision taken by some other person or
authority, as references to that person or 
· authority. 
(3) The Commission shall cause to be delivered to the officer concerned, or to his personal representatives, a
written notice of a decision referred to in subsection (1), stating the time, not being less than fourteen days from the
date on which the notice is delivered, withi.n which he, or his personal representatives, may apply to the
Commission for the case to be referred to an Appeals Board. 
· (4) If application is duly made within the time stated in the notice, the Commission shall notify the President in
writing of that application and thereupon the President shall appoint an Appeals Board consisting of-.. 
(a) one member, who shall not be a member of the Corn. mission, selected by the President; 
(b) one member selected by an association representative of public officers or by a professional body, nomi nated
in either case by the applicant; and 
(c) one member selected by the two other members jointly (or, in default of agreement between those members, by
the Judicial Service Commission) who shall be the chairman of the Board. 
(5) The Appeals Boeid ~ali inquire into the taU of the case, and for that purpose-. 
(a) shall hear the applicant if he so requests in writing and shall consider any representations that he wishes to
make in writing 
(b) may hear any other person who, in the opinion of the Board, is able to give the Board information on the case;
and 
(c) shall have access to and shall consider all documents that were available to the Commission and shall also
consider any further document relating to die case 
that may be produced by or on behalf of the appli-cant or the Commission. 
(6) When the Appeals Board has completed its considera-flon of the case, then- 
(a) if the decision that is the subject of the reference to the Board is a decision referred to in subsection (1, (a), the
Board shall advise the Commission whether the decision should be affirmed, reversed or modified and the
Commision shall act in accordance with that advice: and 
(b) if the decision that is the subject of the reference to the Board is a decision referred to in subsection (1) (b) or
(c), the Board shall not have power to advise 'the Commission to affirm, reverse or modify 
· the decision but- 
(i) where the officer has been removed from office 
· the Board may direct that there shall be granted all or any part of the pensions benefits that, under any law, might
have been grai~ted in respect of his service as a public officer if he had retired voluntarily at the date of his
removal and may direct that any law with respect to pensions benefits shall in any other respect have effect as if
he had so retired; and 
(ii) where some other disciplinary action has been taken in relation to the officer the Board may direct that there
shall be adopted with respect to the calculation of any pensions benefits that, under any law, may be granted in
respect of his service as a public officer such measures as the Board may specify in order to off-set all or any part
of the reduction in the amount of the benefits that, in the opinion of the Board, would or might otherwise be a
consequence of the disciplinary action, 
and any direction given by the Board under this paragraph shall be complied with notwithstanding the provisions of
any other law. 
(7) In this section the expression "pensions benefits" has the meaning assigned to it in section 113. 
(8) This section applies to an officer who holds a pen-sionable office in the public service and- 
· (a) is designated under the Overseas Service Aid Scheme; or 
(b) is a member of Her Majesty's Overseas Civil Service or Her Majesty's Overseas Judiciary; or 
(c) whose conditions of service include an entitlement to free passages from East Africa for the purpose of leave
of absence, other than sabbatical leave, upon the completion of a tour of duty. 

126. (1) If the President so requests, the authorities having power to make appointments in any branch of the public
service shall consider and report to the President whether there are more candidates belonging to Kenya
(here-inafter referred to as "local candidates") who are suitably qualified for appointment to, or promotion in, that
branch than there i'-e vacancies in that branch that could appro-priately be filled by the local candidates; if those
authorities report to the President that such is the case, the authority having power to remove from office persons
holding office in that branch (in this subsection and in subsection (2) referred to as "the nominating authority") shall,
if so requested by the President, select officers to whom this section applies who are serving in that branch and
whose retirement would, in the opinion of the nominating authority, cause vacancies that could appropriately be
filled by such suitably qualified local candidates as are available and fit for appointment and inform the President of
the number of officers so selected; if the President specifies a number of officers to be called upon to vacate their
appointments (not exceeding the number of offi-cers so selected), the nominating authority shall nominate that
number of officers from among the officers so selected and the provisions of subsections (2), (3) and (4) shall
apply in the case of any officer so nominated. 
(2) The nominating authority shall report the name of the officer to the chairman of the Public Service Commission
who in turn shall circulate that name to the authority having power to make appointments in any branch of the
public service in which the officer is eligible for appointment; and each such authority shall then consider whether
there is any vacancy to which it is willing to appoint the officer. 
(3) If an authority indicates to the chairman of the Public Service Commission that it is willing to appoint the officer
to fill a vacancy the officer shall be so informed and that appointment shall be made, but without prejudice to the
right of the officer to retire voluntarily from the public service in the manner provided by any law: 
Provided that where more than one authority is willing 
to appoint the officer to fill a vacancy, the Public Service Commission shall decide which vacancy he shall be
appointed to fill. 
(4) If no authority is willing to appoint the officer to fill a vacancy, the chairman of the Public Service Commission
shall by notice in writing so inform him and requlte him to retire from the public service, and he shall retire
accordingly. 
(5) A notice given under subsection (4) requiring an officer to retire from the public service shall- 
(a) in the case of an officer who, when 'he receives the notice, is on leave of absence upon the completion of a
tour of duty, specify the date on which he shall so retire which shall be not earlier than the expira-tion of six months
from ~ date when he receives the notice or, if his leave of absence would otherwise expire later, when it would
otherwise expire; and 
(b) in the case of any other officer, specify the period, which shall be not less than six months from the date when
he receives the notice, at the expiration of which he shall proceed upon leave of absence pending retirement: 
Provided that the officer may agree to the notice specify-ing an earlier date or, as the case may be, a shorter
period. 
(6) In determining the date or the period to be specified in pursuance of subsection (5) in a notice given to an
officer, the chairman of the Public Service Commission shall act in accordance with the advice of the authority that
nominated that officer under subsection (1). 
(7) This section applies to an officer who holds a pensionable office in the public service and- 
(a) is designated under the Overseas Service Aid Scheme; or 
(b) is a member of Her Majesty's Overseas Civil Service or Her Majesty's Overseas Judiciary; or 
(c) whose conditions of service include an entitlement to free passages from East Africa for the purpose of leave
of absence, other than sabbatical leave, upon the completion of a tour of duty or 
(d) is an overseas officer who, after 11th December. 1963. is appointed to any office in the public service
(other-wise than on promotion or transfer from another such office) and who is notified at the time of his
appointment that this seotion will apply to him. 
(8) In this section "overseas officer" means an officer in the public service who is, either individually or as a
member of a class, declared by the appropriate Commission to be an overseas officer, and "the appropriate
Commission" means--- 
(a) in relation to an officer who can be removed from his office by the Judicial Service Commission, that
Commission; and 
(b) in any other case, the Public Service Commission. 

127. (Repealed by 6 of 1992, s. 12).