Supreme Court judges led by presiding Chief Justice Dr Willy Mutunga, Deputy Chief Justice Kalpana H. Rawal .Prof J.B. Ojwang, Justice Mohammed K. Ibrahim and Justice Dr Smokin C. Wanjala hearing an application by Teachers Service Commission on Thursday where TSC contested the 50 to 60 per cent pay rise at the Supreme Court on Thursday 13 August, 2015.
BY SAM ALFAN.
Teachers Service Commission on Thursday contested the 50 to 60 per cent pay rise at the Supreme Court.
Lawyer Fred Ngatia defending the commission wants the ruling delivered by Court of Appeal judges on July 23 set aside.
In the suit before Chief Justice Willy Mutunga, he said the 2015/2016 financial budget has already been concluded and there was no way the increase could be affected.
Ngatia said the appellate judges should have stayed the Employment and Labour Relations Court ruling delivered on June 30 by Justice Nduma Nderi until the appeal is heard and determined.
He said suspending the judgment partially raised fundamental issues of law which necessitated it to move to the Supreme Court.
Ngatia said Nderi erred in awarding teachers the increase an obligation which is bestowed upon the Salaries and Remuneration Commission by the constitution.
It was another big win for the teachers countrywide two weeks ago after the appellate court upheld the verdict that was entered by the labour relations on 30th June giving teachers a whopping 50-60 percent pay increase
Appellate Court sitting in Nairobi has directed the Teachers Service Commission to abide by the
Court of Appeal ordered the Teachers Service Commission to pay members the 50-60 per cent salary increase by the end of August.
The Court of Appeal three judges bench led by presiding justice Mohamed Warsame, Sankale Kantai and Jamila Mohamed said if the National Treasury fails to pay, the appeal will automatically be dismissed.
TSC which employs teachers on behalf of the government said it cannot afford the salary increase as ordered by the Employment and Labour R elations Court on June 30.
About Sh37 billion was to be paid by the commission by July 31 as ordered by Justice Nduma Nderi.
“The TSC is hereby ordered to pay the new salaries minus the arrears awaiting the full determination of the appeal,” Kantai said.
The appellate court however ruled that the over 30 billion shillings in arrears due to teachers from July 2013 to date be stayed until a determination of the matter.
Salaries and Remuneration Commission which is the interested party and who were opposed to the pay hike were castigated by the judges who said that since its inception five years ago it has left out teachers only concentrating on MCA’s and Women Reps.
Teachers Service Commission was warned that if it does not comply with the directive, its appeal application will collapse.
Salaries and Remuneration Commission which is the interested party in the proceedings came under intense fire after Justice Warsame questioned them over teachers pay.
Presiding judge, justice Warsame wondered why SRC took a short time to sorting out salaries for Members of the county Assemblies and the Women representatives who came to office just the other day while leaving out teachers who have been with us all these years.
The three bench comprising presiding judge, Justice Mohamed Warsame, Jamila Mohamed and Sankale Kantai started hearing the appeal challenging Justice Nduma Ndeli decision that will make teachers countrywide smell if the bench won’t reverse his decision made three weeks ago.
TSC wants the award to be frozen or stayed saying that the more than 37 billion shillings required to implement the judgment which was delivered three weeks ago is not available.
T he AG said the budget has already been passed and they don’t money to pay teachers as ordered by Justice Nduma Ndeli within 30 days.
They further argued that, if the court fails to stop the implementation of the Labour Court order that teachers be awarded a 50-60 percent salary increment with immediate effect, they may risk facing contempt of court. Government denied signing any agreement with teachers over salary increment as it’s alleged by the teachers.
TSC had made the application seeking the bench presiding judge justice Mohamed Warsame exclude himself from hearing the matter.
The bench ruled out the application saying it lacked merit since the justice was exercising his judicial powers as the judicial officer.
TSC lawyer who seemed agitated by the bench decision addressed the judge directly insisting he dismisses himself from the matter but the agitated justice Mohamed Warsame read his own ruling to the lawyer that was the same with bench decision.
Three weeks ago, the Labour Court has ordered that teachers be awarded a 50-60 percent salary increment with immediate effect.
Judge Nduma Nderi said the basic salary was below the Consumer Price Index and teacher’s allowances will first be harmonized to match other public servants.
“Teacher’s salaries are not at par with those of other civil servants in the country. They have been victimized by their employer, who says increasing salaries on their big number will affect the economy,” he said on Tuesday.
Nderi said salaries should be harmonized to address the difference between lower and higher job groups.
“This court reiterates that Teachers Service Commission is the employer and is mandated to review salaries and job evaluation. Of utmost importance is the children of Kenya and the teachers who teach them,” he said.
Nderi ruled that teachers will not have medical allowances; rather the TSC will pay premiums for members to insurance companies.
No disturbance allowance will be accorded for transfers within the same district either.
He called for TSC to work with other organs as mandated by the collective agreement with Kenya National Union of Teachers and Kuppet.
“TSC is obliged to consult with Salaries and Remuneration Commission before making decisions. This decision can only be implemented after Union bodies are consulted.”
The increment will be backdated to July 2013.
On Monday, Knut and Kenya Union of Post Primary Education Teachers filed a joint petition to justify the payment of salaries, allowances and other benefits for their members.
The union demanded a 300 percent raise alongside other allowances which they wanted met before calling off a strike last week.
The Union scaled it down to 150 percent after holding meetings with stakeholders, but TSC said only Sh9.3 billion was available for the teacher’s allowances.
The ruling will be delivered on August 24.