ii. Whether the Court of Appeal erred in finding that the appellants did not have any legitimate expectation
52Cumulatively, the appellant’s case on legitimate expectation was that the 2nd respondent had established a consistent past practice of extending higher financial and promotional incentives to graduate police constables spanning over a period of 51 years; that this was a clear promise by the government evinced in the circular of 1969, the letter of 1995 and the 2nd respondent’s press statement of March 19, 2018; that relying upon this promise the appellants enrolled into accredited institutions of higher learning and obtained university degrees in order to grow in their careers and progress in life through salary increment and promotions; and that upon presentation of their degree certificates, they expected the respondents to emplace them in Job Group J automatically.
53To these claims, the respondents asserted that the appellants were misconceived and misdirected to rely on the letter dated July 26, 1995 as it did not apply to them. The letter was to apply and benefit only university graduates recruited as police constables having obtained a degree and then placed under intensive training. While they concede that, this may have been the case in the past, the circular of 1969 and letter of 1995 ceased to be applied after the promulgation o, the creation of the 2nd and 3rd respondents and the enactment of new statutes and regulations. The process of recruitment and promotion of police officers are now regulated by these instruments, none of which makes provision for the rank of Graduate Constables because all officers to be recruited at that rank are only recruited in accordance with advertisements. There cannot be any claim to legitimate expectation.
54The Court of Appeal in determining this question relied on the decision by this court in Communications Commission of Kenya & 5 other v Royal Media Services Limited & 5 others (supra) and succinctly summarized the principles on legitimate expectation as follows:
56Was the expectation by the appellants to be emplaced on the same pay level as an officer of the rank of Inspector under Job Group J upon presentation of their degree certificates legitimate? It is not in doubt that the appellants were employed on diverse dates between 2007 and 2016. For example, the 1st appellant was employed in 2016, the 2nd appellant in 2013, the 3rd appellant in 2016 and the 4th appellant in 2007. It is also common ground that their respective degree certificates were conferred upon them between 2015 and 2017. What then was the applicable law during the period in question?
57It is well documented that the origin of recruitment of graduate police constables at the level of Job Group J was a circular issued on January 1, 1969, followed on July 26, 1995 by a letter. We underscore the fact that at the time the letter of 1995 and the circular of 1969 were issued, none of the appellants had been employed in the former police force. The 2nd respondent was also nonexistent. Save for the 4th appellant who was employed in 2007, the rest of the appellants were employed after the promulgation of the Constitution and the establishment of the 2nd respondent in 2011. The Recruitment and Appointment Regulations and Promotion Regulations were subsequently developed in 2015. Therefore, the provisions of the Constitution, the NPS Act and the NPSC Act, the Recruitment and Appointment Regulations, 2015, the Promotion Regulations, 2015 and the Career Progression Guidelines, 2016 to which we have made reference applied to the appellant at the time they received their degrees between 2015 and 2017.
58In view of the foregoing fact, it must, of necessity follow that recruitment and promotions in the Kenya Police Service can only be done strictly in accordance wit and the law. Like the Court of Appeal, we find that at the time the appellants approached the respondents to consider their promotions or salaries enhancement, the ground had shifted. It follows, by necessary implication that the circular of 1969 and the letter of 1995 could not form the basis of the claim of legitimate expectation. We shall return to these documents in so far as some of them provide for graduate constables. But we stress that in the hierarchy of laws, no policy paper or letter can override written law.
59What then do we make of the press release of March 19, 2018 by Johnston M. Kavuludi? The context of the press release is important in answering this question. From the contents, it is apparent that the release was a reaction to some misrepresentation in the media regarding an alleged decision by the 2nd respondent about the payment of salaries of graduate constables and officers with disabilities.
60In addition to this, the release confirmed that payment of special salaries to graduate constables was legally protected and were in fact provided for in law. It then gave additional conditions that had to be met for graduate constables to be considered. First, the graduate constables had to present their degree certificates to the Inspector General (IG), Deputy Inspector General (DIG) and the Directorate of Criminal Investigations (DCI) for processing and subsequent submission to the 2nd respondent for consideration and authentication. Second, if the officer’s certificates met the approval of the 2nd respondent in accordance with the guidelines, the officer would only be granted a special salary equivalent to that of an Inspector, if the IG, in consultation with the 2nd respondent were satisfied that the officer selected in that category met all the other standards required for entry into the rank of Inspector. And that was not all. The officer concerned had to proceed for intensive training for a period of 3 years before emplacement to the rank of Inspector; again, only when vacancies were available and announced.
61It was necessary to clarify this procedure in the press because the 2nd respondent was concerned about graduate constables who had unprocedurally been introduced into the payroll as graduate constables without authorization of the IG and approval by the 2nd respondent. In order to correct the widespread illegitimate infiltration of the payroll, the 2nd respondent indicated in that press release that he would embark on an audit of the payroll to remove those officers who did not qualify for such payments. It is this audit that resulted in some officers being demoted from Job Group J to Job Group F, culminating in the institution of Mathenge & 4 others v Inspector General of Police & 3 others; Kenya Human Rights Commission (Interested Party) (judicial review application 032 & 41 of 2021 (Consolidated))  KEELRC 4872 (KLR) before the ELRC. Nduma Nderi, J. declared on September 29, 2022 that the unilateral decision to reduce graduate officers’ pay from Job Group ‘J’ to Job Group ‘F’ without giving them an opportunity to be heard was arbitrary, unreasonable and unlawful. This matter, from what we were told during the hearing, is now before the Court of Appeal.
62But all said, the rationale for intensive training of candidates who already are in possession of a degree at the point of recruitment before emplacement to the position of an Inspector cannot be missed, bearing in mind the onerous supervisory role that comes with the rank of Inspector.
63The release merely confirmed that payment of special salaries (Job Group J) to graduate police officers in the National Police Service was legally protected and was provided for in the new service policy guidelines.
64While the press release was in fact an express promise issued by a public authority, the chairperson of the 2nd respondent, it was addressing a specific category of officers and a specific problem; it merely restated the procedure of promotion of graduate police constables in accordance with the terms of the Promotion Regulations, Recruitment and Appointment Regulations and made no reference to old policy documents. In any case the press release could not replace the law or these guidelines and regulations.
65We confirm, first, that there is no rank in the police service categorized as “Graduate Police Constables”. Under section 22 and the first schedule of the National Police Service Act, there are thirteen (13) ranks in the Kenya Police Service, with the Inspector General at the apex and Constables hold the nadir position in the hierarchy. Secondly, we confirm that the Career Progression Guidelines developed by the 2nd respondent indeed make provision for two distinct entry points into the police service at the lowest level, the constable, PG 1. One can either be a holder of a Kenya Certificate of Secondary Education (KCSE) with a mean grade of D+ and above or have a Bachelor’s Degree in fields like Criminology, Law, Police Science, Education, Public Administration, Strategic Management, Human Resource Management, Physical Education, Music, Media and Public Relations.
66This is in addition to a raft of other requirements, such as Basic Police Training Course lasting not less than nine (9) months; be a Kenyan citizen; physically and medically fit; have no criminal record; met the requirements of chapter six o, and must “be between the age 18 and 28 years and 30 years for graduates”.
67Indeed, therefore, the procedure applied before 2010 under the 1969 circular and the letter of 1995 became obsolete and inoperative once the new ones were introduced. It is no longer mere presentation of a degree certificate by a constable to qualify for promotion to the rank of inspector. A little more is required, as demonstrated in the preceding paragraphs.
68It is an absurdity to read into the press release a promise by the Chairperson that the mere presentation of a degree certificate, irrespective of where it was obtained, or its authenticity or relevance, the officer would automatically be upgraded and be entitled to the salary of an inspector.
69Was there proof of the appellants being unfairly treated? To corroborate their claim of legitimate expectation and discrimination and, further to rebut the respondents’ assertion that the position of graduate constables was not recognized, or did not exist, the appellants relied on and produced copies of pay slips allegedly belonging to their colleagues.
70The pay slips on record belong to three different officers: Joash Rotich stationed at Nakuru Provincial Police Office; Esther Chepkemoi Chebus of Kirinyaga OCPD; and Patrick Oyongo of Nairobi Embakasi OCPD. The pay slips show a steep rise in the salaries of these individuals upon designation as Graduate Police Constables. At some point, the earnings appear to have been reduced. What is interesting about Patrick Oyongo’s pay slips is that in all of them, his designation is not indicated. Without full terms of employment, particulars of the owners of the pay slips, and in the absence of their involvement in the proceedings as witnesses or by way of express authority in the form of affidavits or other depositions, the pay slips were of no evidential significance. Further, the pay slips were not certified as true copies of the original by the 2nd respondent who is the employer of all police officers and custodian of the pay slips. In terms of section 35 of the Evidence Act, the pay slips were inadmissible.
71Although generated and kept by the 2nd respondent, a pay slip is the personal property of the employee to whom it belongs. It contains sensitive confidential personal information. If evidence of a pay slip is not properly obtained, there may be a violation of the owner’s right to privacy and a violation of data protection laws.
73Although the above case relates to an election petition, the issue before the court, just like here was, whether the evidence obtained in an unlawful or questionable manner may be admitted as evidence. The principles are the same. documents belonging to third parties must flow freely from them to whoever wishes to use them in court. It is unacceptable to use ‘self-help’ or clandestine means to obtain documents as doing so would be detrimental to the administration of justice.
74This determination taken together with the unexplained discrepancies in the pay slips, leads us to an inevitable conclusion on this issue, that if the evidence of the pay slip is excluded, the appellants cannot prove that there was a differential treatment of officers holding the same qualifications and performing the same duties and their claim to legitimate expectation falls flat. The respondents’ contention that the position of graduate constables does not exist has not been controverted.
75Contrary to the submissions by the respondents that the appellants only raised the concept of horizontal career development before this court for the first time, the truth is that it was in fact raised for the first time in the appellants’ submissions of September 21, 2020 before the Court of Appeal at paragraph 42. The Court of Appeal in its judgment, however, did not address itself to the question. We cannot blame the court because the question was not pleaded and argued before the trial court. It is common factor that this concept is now recognized and formulated in Regulation 12 of the Promotion Regulations, which provides for alternative avenues for career development as follows:
76In the first place, this regulation makes the scheme non-promotional. The reward is in the form of either higher financial incentives or other opportunities and rewards. The regulation vests in the 2nd respondent full discretion in the formulation and implementation of the scheme. In its implementation, the 2nd respondent takes into consideration several factors.
77In any event, the case presented by the appellants before the ELRC was specific that, as Graduate Police Officers of the rank of constable they were entitled, as a matter of right to a grant of salaries at the scale of Job Group J, equivalent to an inspector. They indeed instituted the action in the ELRC to enforce those rights.
78For all the reasons we have given, we reiterate in conclusion of this ground that the appellants could not rely on the circular of 1969 and the letter of 1995 as the basis of their legitimate expectation well after the promulgation o, the establishment of the 2nd respondent and the enactment of the National Police Service Act and the National Police Service Commission Act, the Recruitment and Appointment Regulations, the Promotion Regulations and the Career Progression Guidelines.
79Concomitantly, we find that the press release of 2018 could not form the basis of legitimate expectation as it was simply a clarification of a specific situation. It restated the requirements for consideration for the promotion of a graduate constable. This ground of appeal therefore fails.