Teachers Service Commission suffers blow in teachers' pay rise dispute

Knut Secretary General Wilson Sossion (centre) and Chairman Mudzo Nzili (second left) celebrate after the Supreme Court ruled in favour of a pay rise for teachers. [Photo: GEORGE NJUNG’E/ Standard]

The Teachers Service Commission (TSC) was thrown into a crisis after Supreme Court judges upheld a court order that over 280,000 teachers be paid a 50-60 per cent increment this month.

Coming three days after TSC paid teachers this month’s salary, The Standard yesterday established crisis talks will be convened this morning involving officials from TSC, the Treasury and the Office of the President to discuss the new development.

This is because with only a few days to the end of the month, TSC may have to reopen the payroll and post the balances accruing from the award, which is a tedious and complex exercise given the numbers of staff involved. Secondly, it means TSC is left with the task of getting additional cash to top up the July pay it posted to satisfy the court ruling.

A TSC official confidentially described the Supreme Court ruling as “unsettling”, adding: “This is an issue of the whole Government and not TSC. It will have to be resolved by the State. There will be a decision once TSC, OP and the Treasury meet.”

The ruling by the judges that they could not entertain the application by TSC challenging the Court of Appeal’s directive that the pay increment be implemented beginning August 1, complicated matters for TSC, which has suffered setbacks in efforts to block the pay rise.

The import of the ruling was that TSC, which paid teachers this month’s salary last Friday, will be forced to process additional pay to comply with the order and the union lawyers have warned of contempt proceedings should it fail to honour the pay raise.

“We will write to TSC, Treasury and the Salaries and Remuneration Commission demanding that the remainder of the salary be released by August 31 failure to which they will be in contempt of the court orders,” said senior counsel Paul Muite who represents the Kenya National Union of Teachers (Knut). He spoke outside the Supreme Court Building.

Going by the earlier award, as from August 1, the lowest paid teacher was to pocket Sh21,304 up from Sh16,692, while the highest paid teacher was to get Sh144,928, up from Sh109,089.

This translates to a 15 per cent increment for the lowest paid teacher and 12.5 per cent for the highest paid.

But TSC had contested the increment arguing it would raise the monthly wage bill by Sh4.96 billion and the Government had indicated there was no money. Currently, the monthly wage bill stands at Sh9.92 billion.

The commission will now have to raise the Sh4.96 billion before the end of this month, as the unions demanded yesterday, or else they will have their case in the appellate court being dismissed too for failure to follow the court orders.

In a unanimous decision yesterday, Justices Willy Mutunga, Jackton Ojwang, Smokin Wanjala, Mohammed Ibrahim and Kalpana Rawal ruled that the Supreme Court lacks powers to hear and issue temporary orders when a case was still pending in the lower court.

“We find that this court lacks jurisdiction to entertain an application challenging the exercise of discretion by the Court of Appeal under Rule 5 (2) (b) of that Court’s Rules, there being neither an appeal, nor an intended appeal pending before the Supreme Court,” read part of the 15-minute ruling, which sparked celebrations in the courtroom by teachers’ representatives.

Knut Secretary General Wilson Sossion described the victory as ‘three-nil win’ for teachers. “I want to thank the judicial system for enforcing the Constitution and the laws of this country. And now we are telling Government to comply by paying the teachers what they deserve,” he said.

TSC has now been left at the mercy of the appellate court which, in its ruling on July 23, specified that TSC’s appeal against the award was dependent on commission’s commitment to pay teachers the pay rise.

TSC lost in the Employment and Labour Relations Court, it further lost the first round of its appeal against the salary award and has now lost again despite the commission boosting its legal team to include lawyers Fred Ngatia and Issa Mansur.

The judges ruled it would have been unfair if they gave orders in favour of either party.

“Such an early involvement of this court, in our opinion, would expose one of the parties to prejudice, with the danger of leading to an unjust outcome,” the ruling read.

They arrived at the decision after one of intense exchanges between TSC, Attorney General Githu Muigai and the Salaries Remuneration Commission on one hand, and Knut and the Kenya Union of Post Primary Education Teachers (Kuppet) on the other.

In the case, lawyers for the unions argued the National Treasury is to blame for not allocating more money for teachers’ pay in the 2015-2016 budget, as it was aware the matter was in court and could be determined either way.

Lawyers Paul Muite, Kioko Kilukumi, John Mbaluto and Judy Guserwa poked holes in the State’s argument it did not have money to pay the teachers, arguing it was only trying to use the court to run away from its responsibilities.

“It is indicative of this bad faith that while the applicant has couched the said application as ostensibly raising various constitutional issues, nowhere in the said application does the applicant (TSC) acknowledge the basic and simple Constitutional right to fair remuneration owed to Kenyan teachers,” lawyer Muite submitted during the hearing.

The Supreme Court Judges agreed with the lawyers for the unions that it was still early to open a new contest whilst the old legal duel was still simmering. The teachers’ employer was also ordered to pay Knut and Kuppet the cost of the case.