Commission has filed notice of appeal against judgement delivered by High Court last year.
There is disquiet in the Judiciary following a decision to block a pay rise for judges recruited from private law practice.
The disgruntled judges were hired between 2014 and 2016, but are paid lower salaries than their peers promoted from among magistrates during the same period.
After launching a successful appeal in the High Court, the judges suffered a setback when the Judicial Service Commission (JSC) opted not to implement the pay harmonisation as directed by the court.
The Standard can exclusively reveal that the JSC has filed a notice of appeal against the judgment delivered by Justice George Odunga on December 18 last year, arguing it is dissatisfied by the verdict.
One role of the JSC, which is chaired by Chief Justice David Maraga, is to review and recommend the conditions of service of judges, including their remuneration.
Sources said that a magistrate who has been promoted to a judge takes home a salary of Sh632,000, which is lumped together with a Sh13,500 non-practicing allowance.
On the other hand, their colleagues who have been employed from private practice earn Sh156,000 less, a trend that started in 2014 and looks to continue for the foreseeable future.
“I cannot believe that the JSC is the one discriminating. They got away with it until we went to court. We had been promised that the issue would be looked into, but they did not,” one judge told The Standard.
In the case that was heard by Justice Odunga, the judge ruled that it was unfair for the JSC to give a raw deal to lawyers who join the bench from outside the Judiciary.
“By subjecting judges to a disparity in their remuneration based on their origin, the first respondent (JSC) has created a differentiation between the judges based on one’s choice of where to ply his/her trade - whether in private or public sector. That differentiation is not permissible under any law and cannot be justified. It is upon the first respondent to set remuneration in such a way that each tier of the Judiciary is remunerated in accordance with its superior rank,” ruled Justice Odunga.
Another judge said that commission’s decision to cut their pay was illegal because their salaries are spelt out in the Constitution.
“The problem is that the Court of Appeal has no numbers to hear cases. It has gone too far. The JSC has been giving preferential treatment and it should just honour the judgment by Justice Odunga. The funds are from the Consolidated Fund which neither the JSC nor the Salaries and Remuneration Commission (SRC) can reduce at will.”
The affected judges, who spoke on condition of anonymity, accused the Justice Maraga-led commission of “deepening the pain of an injury that had already been caused.”
Reached for comment, Chief Registrar of the Judiciary Anne Amadi said she was away from office and was therefore not aware that the JSC had chosen to file an appeal.
“I need to check that but probably the commission is not satisfied with that decision,” she said.
The JSC’s argument is that the SRC has the mandate to review judges’ salaries while its mandate is to implement the recommendations.
The commission says that all vacant positions of judges are advertised through the media as well as the salaries attached to the positions as set or reviewed by the SRC.
According to the SRC, individuals who apply for the position of a judge are aware of the salaries and benefits they will earn before they take the oath of office.