Big blow to Kenyan teachers as judges reverse 50-60 pc salary hike

KNUT Chairman Mudzo Nzili (left) KNUT treasurer John Matiangi (centre) and KNUT Secretary General Wilson Sossion during the ruling at Court Of Appeal. PHOTO: BEVERLYNE MUSILI

NAIROBI: The Court of Appeal Friday denied the country’s 288,000 teachers the hefty court-awarded pay rise, criticised the judge who issued the award, and exonerated the teachers’ employer for ignoring the order to pay the increase.

In a six-hour judgement delivered to a packed courtroom, the five-judge bench shattered the hopes of teachers for more money and insisted that the Salaries and Remuneration Commission (SRC) had to be involved in setting new pay.

The judges insisted that once the SRC sets the new remuneration, the Teachers Service Commission was bound by it.

Justice Erastus Githinji, Justice Otieno Odek, Justice Philomena Mwilu, Justice Festus Azangalala and Justice Martha Koome agreed that the award was “irregular” because the SRC’s counsel was never sought.

“By a majority finding of the judges, the role of SRC is binding and thus the award by the Labour Court could not be complete without the advice from the commission. It is agreed that the judgement dated June 30, 2015 is set aside together with the orders and the decree accompanying it,” the judges ruled.

With those words, the judges dealt a major blow to the teachers’ unions, and thousands of their members who had to endure 27 hot and dusty days protesting on the streets, harassing the government and hoping for a pay rise.

All that time the government remained adamant that it “can’t pay and won’t pay” with President Uhuru Kenyatta declaring that he can’t afford to pay the 50-60 pay increase that Justice Nduma Nderi of the Labour and Employment Relations Court had awarded the teachers.

The strike wasted plenty of learning hours for the examination candidates and now that the court has made a pronouncement, it appears the unions will just have to lick their wounds and live to fight another day at the Supreme Court.

Friday, while the judges crushed their dreams, the Kenya National Union of Teachers chairman Mudzo Nzili and his secretary general Wilson Sossion cut a pensive look in their well-cut suits and snappy ties. Nzili at one point had the palms of his hand clasped in front of his face as if in prayer while Sossion, who sat in the middle of the row, had his chin supported by his right hand.

The chairman of the Kenya Union of Post-Primary Education Teachers, Mr Omboko Milema, was sitting to Sossion’s left. At one point, Milemba shook his head in disagreement with what Justice Odek was saying.

But that did not stop the judges from tearing into pieces the earlier ruling and siding with the arguments of the government and the teachers’ employer. The judges, also in a unanimous decision, vindicated the Lydia Nzomo-led commission from disobedience by finding it was not placed in contempt by any court of law. The judges ruled that the orders of the Court of Appeal requiring TSC to pay allowances as the case was being heard would not have any effect as they lapsed immediately the commission was unable to pay the new salaries. The only good news for the unions is when the two female judges Lady Justice Koome and Lady Justice Mwilu differed with their three male colleagues and said Justice Nderi had a right to deal with the “chronic” pay dispute between the TSC on one hand and the teachers’ unions on the other.

Justices Odek, Azangalala, Githinji faulted Justice Nderi for taking the conciliatory role in the dispute and ruled that he could not be an adjudicator and at the same time a conciliator, a role they said ought to be played by a tribunal’s arbitrator and not a judge of a court of law.

However, in dissenting verdicts, Lady Justice Mwilu and Lady Justice Koome agreed with Justice Nderi’s decision to step in and make a deal.

“It was unprocedural and untidy for the judge to switch from one role to another but I will not declare the proceedings a nullity on that basis. All parties agreed that the elephant in the room was the issue of salaries. He had to overlook all the technicalities to solve the issue. The judge was in a situation that needed a resolution,” Lady Justice Koome ruled.

Protracted deadlock

Lady Justice Mwilu noted that there was a deadlock between TSC and the unions and the judge had to make a decision.

“None of the appellants was willing to table an offer to yield a meaningful outcome of the case. It would not have been prudent for the judge to send the case back to a conciliator when the negotiations had failed... He had powers to arbitrate the matter. I disregard the procedural technicalities and therefore not fault the judge,” said Lady Justice Mwilu.

The five judges read the verdict individually. The judges were of the view that there were efforts by TSC to comply with the orders of the court but there was no money to fulfill it.
Justice Koome was the only judge who ordered SRC to table a report on job evaluation and issue a proposal to TSC within 90 days in order to facilitate the signing a Collective Bargaining Agreement with its disgruntled employees.

“It is disheartening that SRC has not carried out any job evaluation in relation to teachers. It would thus be futile for unions to demand for a CBA. I therefore order SRC to place a job evaluation report and a proposal before the labour court within 90 days to assist in finalising a CBA,” she ruled. After the ruling, the unions vowed to go to the court of last resort in the country, The Supreme Court, in a bid to counter the decision of the five judges. Through their lawyer, Paul Muite, the unions disagreed with the Court of Appeal and promised a legal duel to make sure their members get a pay rise. “We will go to the Supreme Court to hear the final word. Education in public schools is that of demoralised teachers,” said Senior Counsel Muite.