CHAPTER XI
TRANSITORY

Effect of Chapter

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.

Appeals in respect of certain decisions affecting pensions benefits

125. (1) This section shall have effect for the purpose of enabling an officer to whom this section applies or his personal representatives to appeal against any of the following decision-

(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 consequence 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 following provisions of this section, references to the Commission shall be construed-

(a) in relation to a decision to in subsection (1) (a), as references to the Public Service Commission;

(b) in relation to a decision referred to in subsection (1) (b) and (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 his person 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, within which he, or his personal representatives, my 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 Commission, selected by the President;

(b) one member selected an association representative of public officers or by a professional body, nominated 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 Board shall inquire into the facts 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 the case that may be produced by or on behalf of the applicant or the Commission.

(6) When the Appeals Board has completed its consideration 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, revered or modified and the Commission 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 granted 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 my 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 pension 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 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.

Compulsory retirement to facilitate appointment of local candidates

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 (hereinafter referred to as "local candidates") who are suitably qualified for appointment to, or promotion in, that branch than there are vacancies in that branch that could appropriately 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 officers 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 of 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 require 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 expiration of six months from the 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 specifying 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 (otherwise than on promotion or transfer from another such office) and who is notified at the time of his appointment that this section 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.

North-eastern Province and contiguous Districts

6 of 1992 s. 12

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