SRC advice can't be ignored on public officials salaries, court rules

Salaries and Remuneration Commission (SRC) chairperson Lynne Mengich. [Elvis Ogina, Standard]

The Court of Appeal has spelt doom for civil servants and officials working for independent arms of government and commissions seeking a pay raise without the Salaries and Remuneration Commission (SRC) say.

The court has ruled that the SRC advice cannot be ignored on public servants' salaries.

Court of Appeal Judges Asike Makhandia, Jamila Mohammed and Sankale Ole Kantai unanimously agreed that the SRC’s recommendations on the remuneration and benefits of all public officers are binding.

The Judges said the commission has a mandate to ensure that the public compensation bill is fiscally sustainable.

“The Constitution sets out the principles that SRC has to take into account before giving advice on the salaries of public officers. It is also necessary to state that it is only SRC that has the mandate under the Constitution to ensure that the total public compensation bill is fiscally sustainable. The advice is guided by set principles; no other commission is given that mandate; it is only SRC,” the bench headed by Justice Makhandia ruled.

In the meantime, Justices Makhandia, Jamila and Kantai held that the advice by the SRC does not violate the role of independent commissions.  

They said the advice is mutually complementing the roles of all state organs and independent commissions to ensure sustainable development.

“The advice given by SRC is binding as the advice is not merely an opinion, it is advice that has a constitutional underpinning. The advice is binding as it emanates from a constitutional organ with the exclusive constitutional mandate to determine fiscal sustainability of the total public compensation bill,” they ruled.

The judgment is likely to have ramifications on a case between Kenya Judges and Magistrates and Judicial Service Commission (JSC) who are currently rocked in a vicious court battle with the SRC over car grants.

They were of the view that no state or public officer can earn a salary or benefit without the involvement of SRC.

“No valid salary and or benefit of a state or public officer, as appropriate, shall ensue from a process that ignores the roles of SRC as we have reproduced them above,” they observed.

The case was filed by Peter Gachuiri seeking to compel the government to reinstate car grant to judges which was suspended by SRC in 2022.

The dispute dates back to 2011 when the Head of Civil Service issued a circular allowing judges to access car grants of between Sh5 million and Sh10 million.

But SRC determined that the allowance was illegal and in 2021 wrote to the Head of Public Service who subsequently communicated to the Chief Registrar of the Judiciary that SRC had terminated the benefit from July 2022.

The argument in Gachuiri’s case is that SRC interfered with JSC’s mandate.

However, Judges are state officers.

In the meantime, the Court of Appeal Judges delivered the verdict in a case pitting SRC against the National Hospital Insurance Fund (NHIF), Kenya Union of Commercial, Food and Allied Workers and the Attorney General.

It stemmed from the Employment and Labour Relations Court (ELRC). Justice Nelson Abuodha found that the role of SRC was strictly tied to regulating the remuneration of state officers.

However, SRC through its lawyer Paul Nyamodi argued that the commission had powers to set and regularly review the remuneration and benefits of all state officers as well as advise the national and county governments on the remuneration and benefits of all other public officers.

Nyamodi asserted that NHIF derived its funds from the public, hence its Collective Bargaining Agreement with employees ought to be subject to SRC’s advice. He said that NHIF officers were public officers.

On the other hand, the union argued that SRC’s role was advisory on public officers remuneration. It argued that the commission’s advice cannot be binding on independent agencies and commissions.