Members of Parliament will continue enjoying their current pay and allowances after the Court of Appeal declined to suspend the perks, pending the determination of an appeal filed by Salaries and Remuneration Commission (SRC).
Justices William Ouko, Asike Makhandia and Otieno Odek said there was nothing to show that the MPs would not be able to refund the monies paid, if the appeal succeeds.
The Judges said one of the key objectives in granting an order of stay is to preserve status quo pending hearing and determination of an intended appeal.
They said the current status quo is that MPs have always been paid using the 2013 Gazette Notice and granting a stay order will reverse the status quo.
“To this extent, the applicant has not satisfied us the intended appeal shall be rendered nugatory if stay order is not granted,” the judges said.
In a gazette Notice published on July 7, 2017, SRC had among other things, abolished the car grant, reduced the number of sittings for plenary sessions and as well as sitting allowance for committee meetings to 16 per month. It also abolished reimbursable mileage allowance.
Justice George Odunga of the High Court later quashed the gazette notice stating that there was procedural impropriety in its promulgation.
MPs, through lawyers TJ Kajwang’ and Peter Kaluma, had challenged the notice saying it was unreasonable as SRC ignored relevant considerations and the law.
They said the move is also discriminatory, malicious, because it goes against the legitimate expectations of the MPs.
Further, the MPs argued that SRC has no mandate to revise, to the disadvantage, the benefits and facilities payable to and or in respect of MPs.
According to the legislators, the commission acted contrary to basic labour laws and practice and the need to secure independence or Parliament as a governance institution.
SRC appealed against the decision arguing that Justice Odunga erred in reviving the 2013 Gazette Notice on salaries and remuneration of state officers.
The commission said it was wrong for the Judge to legitimise payment of salaries and allowances to a level that cannot be sustained by the public wage bill.
The commission further stated that the judge ignored the constitutional mandate of SRC of fixing salaries and remuneration of state officers as set out in Article 230 (4) of the Constitution.
It was submitted that reverting to the 2013 Gazette Notice will have negative repercussion and raise the wage bill by approximately Sh1.713 billion per annum.
Senior Counsel Nzamba Kitonga for the Law Society of Kenya said the recovery of the money already paid, in case the appeal succeeds, will be at best tenuous, impractical, time consuming and costly taking into account the fact that MPs serve for a term of five years with some not likely to make it back.
But the three judges rejected the submission stating, “In the instant matter, save for bare allegations, there is no evidence by way of affidavit that state officers and Members of Parliament will not be in a position to refund any monies paid. When we consider the facts as placed before us, the applicant has not shown why it alleges that the Members of Parliament will be incapable of refunding the sums paid.”
The judges equally declined to stop the increased pay to Members of the County Assemblies, instead, directed the case to be heard expeditiously.