Appellate court says paying former MCAS for no work amount to loss of public funds.
Members of the county assemblies (MCAs) who served in the 2013-2017 period have lost a claim of Sh8 billion, which they had been awarded by the High Court.
The Court of Appeal on Friday held that the decision, which had directed the government to pay them for eight months after the August 8 General Election, was a misinterpretation of the Constitution.
Appellate Judge Daniel Musinga, in a judgment he read on behalf on two other judges, said the Constitution is the supreme law of the land and should not be interpreted in a manner that makes it conflict with itself.
The High Court Judge Edward Muriithi had held that the ward reps are entitled to an order for payment of damages for loss of income for the incomplete term of office.
He held that the MCAs tenure was cut short when August 8 elections were held before the expiry of their constitutional term of five years.
The appellate court, however, stated that public officers do not have right to a public office, and paying them when new MCAs have been elected and sworn into office would amount to loss of public funds.
“That interpretation was bound to create confusion given that former MCAs and presently elected MCAs will be fighting for remuneration. Public funds will thus be wasted,” Justice Musinga.
The Independent Electoral and Boundaries Commission (IEBC) and the Attorney-General lodged the appeal against the High Court decision in April.
The lower court had held that the MCAs five-year tenure ends on March 3, 2018 in line with Article 177(4) of the Constitution that provides they serve for five years.
ERROR IN LAW
But IEBC, through lawyer Edwin Mukele, had argued that High Court had allowed MCAs who are neither elected nor nominated, as provided for in the Constitution, to continue serving as such for an extended period of eight months.
The Attorney-General, through State Counsel Jennifer Gitiri, argued that Justice Muriithi made an error in law by failing to appreciate Article 194(1)(f) of the Constitution which provides that the office of MCA becomes vacant at the end of the term of the assembly.
According to him, the term of assemblies ended just before the General Election was held.
The AG further faulted the judge for failing to appreciate that there are other elected state officers and whose election is to be held on the same day, being the second Tuesday in August, in every fifth year.
They are president, governors, senators, women representatives and MPs, whose terms also ended just before August 8.