Court order to pay ex-teachers Sh16.7b valid, declares judge

Retired teachers led by their secretary Gidraff Kimata (right) checking on a document at Nakuru high court on October 25,216 where the Controller of Budget Agnes Odhiambo appeared before Lady Justice Janet Mulwa to answer summons issued upon her by the court over retired teachers Pension payment.
An order by the court to pay retired teachers pension arrears of Sh16.7 billion is enforceable.

Nakuru High Court Judge, Justice Janet Mulwa in a ruling on an application by Teachers Service Commission said the judgment by Justice David Maraga as then was and upheld by the Court of Appeal is valid.

“The judgment is enforceable by a valid decree of the court, currently, by the interim certificate of order against the government in the sum of Sh16.7 billion pending full computation of sums payable to each retired teacher,” the judgment reads.

The court further stated that the order against government in the sum of Sh16.7 billion was properly anchored on specific and stated grounds, on the amount the government had budgeted for at the time as part payment of the retired teachers' dues.

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Justice Mulwa ruled that the certificate of order is therefore neither verified nor final, but interim, pending full compliance with the court’s judgment.

While TSC was seeking clarity on the amount payable, the 52,000 retirees maintained the government owed them Sh42.3 billion.“It was part payment, the final certificate has to await TSC's final computation as directed in both this court’s judgment and the Court of Appeal,” stated Justice Mulwa.

TSC in the application dated September 24, 2018 sought directions whether judgment entered against it in October 23, 2012 required payment of unpaid gratuity and pension dues only and that there was no orders whatsoever on salaries.

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TSC also sought clarity whether a certificate entered against government for Sh16.7 billion and whether the retirees can claim anything above the amount.

“The retired teachers, through their advocate Dominic Kimatta, pegged the same at Sh42.3 billion while TSC and the Director of Pensions states a sum of Sh16.7 billion. That huge disparity is subject of the application before me,” said Justice Mulwa.

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Justice Mulwa in her ruling noted that the retirees had no claim for salary arrears or unpaid salaries by whatever phrase.

The High Court and the Court of Appeal judgments, she noted, do not talk of salary arrears or unpaid salaries.

If the teachers had any unpaid salaries from their employer, she said, it would have been the easiest thing to plead, in clear and plain terms.

The retirees, the judge said, cannot get that which they did not plead nor would the court grant it.

As to the Sh42.3 billion, the court said it is not a certified sum having not been computed for all beneficiaries. Only 46,000 teachers’ computation is reported as having been done and the task is still ongoing. “Accordingly, the answer in my opinion is the Sh16.7 billion or Sh42.3 billion is a plain and clear no, neither of them,” ruled the judge.

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The judgement of the High Court delivered in October 23, 2012 by then Justice David Maraga required payment to the retired teachers of their retirement benefits based on entire salary increment. TSC and teachers had entered into an agreement in a circular dated No.13 of 1997.

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