Ex-CJ Willy Mutunga, Raila among retirees to earn billions

Former Chief Justice Willy Mutunga and Ex-Prime Minister Raila Odinga.

Former Chief Justice Willy Mutunga wants his pension recalculated and backdated to July 17, 2016, a development that could see him and 12 senior retirees earn an additional Sh4 billion.

If Dr Mutunga succeeds, government officials argue that this will have a ripple effect on the pensions earned by the other senior citizens.

When the former CJ retired in 2016, he was paid a lump sum on February 7, 2017 under the Pensions Act 189, and was not considered for monthly pension since he had only worked for less than ten years.

When the DPs Act was amended he received other benefits after he lodged another claim on June 28, 2017.

The Retirement Benefits (Deputy President and Designated State Officers) Act, 2015, stipulates “a retired Chief Justice shall, during his or her lifetime, be entitled to a monthly pension equal to eighty per cent of the monthly salary of the entitled person’s last monthly salary while in office.” He is also entitled to a lump sum payment on retirement, calculated as a sum equal to one year’s salary paid for each term served in office among other benefits.

Documents seen by the Saturday Standard indicate that the monthly pension enjoyed by former Prime Minister, Raila Odinga, former Vice Presidents, Moody Awori, Kalonzo Musyoka, George Saitoti, Musalia Mudavadi, Kijana Wamalwa and Musalia Mudavadi will have to be adjusted and backdated.

Wrongly calculated

Others whose monthly pensions are likely to be affected are former Speakers of the National Assembly, Kenneth Marende, Francis ole Kaparo, Jonathan Ng’eno and Ekwe Ethuro.

Besides Mutunga, the pension of his predecessor Evans Gicheru and former Deputy Chief Justice Kalpana Rawal are also likely to be affected.

According to the documents, the former CJ wanted his pension recalculated with effect from July 17, 2016 when he retired.

Initially, when Mutunga retired, he was paid a lump sum pension gratuity on February 7 2017, under the under Pensions Act chapter 189 and under the Windows and Children’s Pension Scheme chapter 195.

However, when this law was amended and the office of the Chief Justice and Deputy Chief Justice included in the jurisdiction of the Retirement Benefits (Deputy President and Designated State Officers) Act, 2015, simply known as DP Act, the Judiciary forwarded another claim on June 28, 2017 consequently putting him on monthly pension.

According to Mutunga, his pension was wrongly calculated as it ought to have been computed from the date he retired, June 17 2016, and not the date the amendment of DP Act was assented to in 2017.

Contacted Mutunga said: “The best persons to give you the overall picture are Ken Ogeto, the Solicitor General and the Chief Registrar of the Judiciary, Ann Amadi. Both have treated me well in my retirement. They will tell you where the problem lies and what is being done about it.”

Mr Ogeto said his office had stressed that the former Chief Justice was supposed to be paid his pension.

“I do not have the opinion on my desk right now please call me later an hour I will explain everything,” he added.

The Chief Registrar of the Judiciary, however declined to comment on the issue as pension matters are handled by the Treasury. “The pensions issues are dealt with by the National Treasury Director of Pensions. They will be able to guide you,” Ms Amadi said. 

More information

The Director of Pensions Shem Nyakutu said he could not divulge details on the matter which was being handled at various levels in government.

“We have received the claim but I am sorry I cannot give you more information on the matter,” Nyakuti said on phone.

Former Solicitor General Njee Muturi gave his opinion for enhanced pension on January 29 2018 following a request by Mutunga.

“According to Section 3 b of the Retirement Benefits Act (Deputy President and Designated State Officers Act, 2015 states in part that the persons entitled to the benefits  conferred to this Act shall be persons who at any time after the August 27, 2010 retire as Chief Justice,” reads the Solicitor General’s opinion.

According to the Solicitor General’s January 29 advisory, the amendment when read with provisions of section 25, the date of the retirement of the state officer should be the basis of computation.

Legitimate expectations

Consequently, according to Muturi, the former CJ’s  pension ought to have been calculated from June 16, 2016.

In his opinion, the amendment of the DPs Act  should act, in retrospect, and understanding which had made Mutunga have legitimate expectations.

The opinion has triggered some concerns that if Mutunga’s pension is recalculated, then that of his deputy, Rawal, who retired on September 11, 2016 will also have to be considered for both of them were included in DP’s Act.

At the same time, Gicheru, who was the serving CJ on October 27, 2010, would also qualify to have his pensions recalculated from the date he retired on February 27, 2011.

This experts at Treasury argue that if the Solicitor  General’s opinion is adhered to,  retired prime minister, Vice president and speakers will have to be considered.

The feeling at the Treasury is that if the 13 senior public officers have to be given all the benefits at least Sh4 billion will be required.