TSC in bid to block teachers' September salaries

Teachers Service Commission Chairperson Lydiah Nzomo (left) and CEO Nancy Macharia.

Any hope of teachers getting their September salaries this month have been dashed after their employer moved to court to block payment.

A court document shows the hearing date for the appeal case has been set for Thursday next week.

By moving to the Court of Appeal, the Teachers Service Commission (TSC) has violated an agreement brokered by President Uhuru Kenyatta at State House recently that required all parties to withdraw all court cases to allow for fresh pay talks.

The September pay has been dogged by controversy with TSC seemingly resisting calls from the President, Education Cabinet Secretary Fred Matiang'i and even Attorney General Githu Muigai's legal opinion to release the funds.

In the State House deal, President Kenyatta had asked TSC, "in the spirit of reconciliation and consideration, to consider paying all the teachers their September 2015 salaries and union dues at the earliest opportunity".

Mr Matiang'i also promised that teachers would get their September pay starting last Monday. On Sunday, on his Twitter handle, Matiang'i said: "Had discussions with TSC Secretary, consulted with colleagues AG & CS Rotich. Teachers' September salaries to be paid from tomorrow (Monday)."

But this was not to be, instead TSC accused the CS of interfering with their independence.

Prof Muigai advised TSC in a letter dated November 30, that after reviewing all the case rulings, only a stay order either from the same court (Employment and Labour Relations Court) or Court of Appeal would bar the implementation of the directive.

Treasury Principal Secretary Kamau Thugge yesterday said TSC was yet to make a formal request for funds to pay the September salaries.

"After TSC has settled their issues we shall look for money to fund them," said Mr Thugge.

The decision by TSC to move to court comes hours after the AG, in his advisory opinion, said that it did not have a legal basis to withhold the salaries.

The teachers' unions read malice in the move coming in a week that Matiang'i had promised teachers their September pay.

A hearing notice sent to the Kenya National Union of Teachers (Knut) and Kenya Union of Post Primary Education Teachers (Kuppet) shows that the TSC now wants the Court of Appeal to review the court ruling that ordered that no teacher should be victimised for having participated in the nationwide strike.

"Application to stay execution of part of the judgment and orders of the Employment and Labour Relations Court (Justice N J Abuodha) given September 25, in Employment and Labour Relations Court petition no 72 of 2015," reads the document.

Kuppet Secretary General Akello Misori said: "We are not surprised by the move. What we do not understand is why TSC is so determined to fight and embarrass teachers further."

His Knut counterpart, Wilson Sossion, said teachers are ready to engage TSC in talks.

"What we shall not do is to beg for September salaries as it is a right of the members. The court has also made its pronouncement on this matter. So there is nothing to discuss," said Mr Sossion.

In her letter to Muigai, TSC Chief Executive Officer Nancy Macharia said the commission had not implemented the court's advice on three grounds.

First, that "a public officer shall not spend public money unless authorised by the Constitution".

Second, that "an employer is not obliged to remunerate an employee for services not rendered." And finally, that a judgment of a court cannot not direct any person to commit an offence.