Teachers will in a month's time know the fate of the 50-60 per cent basic salary award pronounced three months ago by the Employment and Labour Relations Court.
Five appeal judges set November 6 as the day of judgment on the pay hike after receiving weighty legal issues for determination from 10 senior lawyers, including Attorney-General Githu Muigai.
On Tuesday, Prof Muigai concluded his submissions, saying “this is not an easy case for all of us”.
Prof Muigai noted it was a hotly contested case between the government and the two teachers' unions — the Kenya National Union of Teachers (Knut) and Kenya Union of Post-Primary Education Teachers (Kuppet).
The AG told the judges that he hoped they would uphold the law and dispense justice in their judgment.
“This has not been an easy case for the Teachers Service Commission (TSC), the Salaries and Remuneration Commission (SRC), the Attorney-General, the teachers’ unions and certainly not for you because we all know the role played by teachers,” Prof Muigai.
Knut and Kuppet, through lawyers Paul Muite, Kioko Kilukumi, John Mbaluto, Hillary Sigei and Judy Guserwa, defended the judgment, saying “the trial judge relied on proposals put forward by the TSC in arriving at the award”.
Ms Guserwa urged the second highest court to uphold the 50-60 per cent pay raise award as it was reached upon consideration of material evidence submitted by the TSC.
She said the TSC had conducted a study and a survey on the pay hike as it addressed “inflation and other biting economic matters”.
Ms Guserwa said the award was sustainable, given the backdrop of economic growth.
She urged appeal judges Erastus Githinji, Philomena Mwilu, Martha Koome, Festus Azangalala and James Otieno Odek to agree with the labour court judge.
The judges heard that corruption and lack of proper planning hindered the implementation of the salary award.
'CAN'T PAY, WON'T PAY'
The TSC was accused of failing to prepare and present in good time its proposals before the budgetary committee, thereby contributing heavily to the government stand of “can’t pay won’t pay”.
Mr Muite told the judges that the country was losing 30 per cent of its gross income to corruption, citing the Anglo Leasing scam, through which billions of shillings left public coffers.
“I urge this court to order the government to implement the salary award,” Ms Guserwa said.
Prof Muigai led lawyers Fred Ngatia, Geoffrey Obura, Kimani Kiragu (TSC) and Pheroz Nowrojee (SRC) in appealing for the setting aside of the judgment awarding the pay hike, arguing “it was a nullity in law”.
Prof Muigai and Mr Ngatia told the judges that Justice Mathew Nduma Nderi assumed the role of a conciliator irregularly and therefore the award he pronounced was null and void and “it recommends itself for setting aside”.
The AG defended the government on the Anglo Leasing scam, saying “my office has done a lot in ensuring recovery of the public funds”.
Already, three businessmen have been charged over the loss of over Sh10 billion in the scam. He said some of the lawyers in the salary saga are also defending ministers accused of corruption.
The TSC, through Mr Ngatia, said there was no consent to convert a petition filed in court to be a conciliation when the parties appeared before Justice Nderi on January 14.
He said Justice Nderi assumed the role of a conciliator then proceeded to conduct the proceedings as if “all the parties had agreed to proceed that way.”
Mr Nowrojee faulted the salary judgment, saying Justice Nderi ignored the role of the SRC in resolving the salary dispute.
He said the judge erred in law by saying the “the salary commission's role was only advisory”.