The Kenya National Union of Teachers (Knut), under the leadership of the feared and tactful trade union maestro the late Ambrose Adeya Adongo alias A.A.A, managed to secure a salary deal of 150 per cent for her members during the tough regime of the late president Daniel arap Moi. The pay deal, which was to cost Kenyan taxpayer a whopping Sh123 billion, met headwinds only after the first phase of implementation.
The government claimed the economy would have collapsed would it have paid the remaining Sh80 billion in four phases. And so the implementation schedule was halted, and further negotiations were planned to allow progress. After several consultative meetings between teachers’ trade unions, the Teachers’ Service Commission (TSC), the Treasury and the Kibaki regime, it was agreed that the money be paid in four phases beginning 2003.
Along the implementation process, some teachers retired before fully benefitting from the deal. This led them to file a court case at the High Court in Nakuru so as to be assisted to access their payments since the law provides that once a pay agreement is entered between employers and employees, all employees should benefit entirely even if they exit the service within a month.
There existed several bottlenecks in identifying who were to be the rightful beneficiaries of the pay deal. For several years, the courts were treated to varying numbers of the would-be beneficiaries, with other sources giving numbers ranging from 52,000 to 32,000 and later 31,000. But after an intensive audit, TSC gave the number as 23,811 teachers.
This meant the affected 23,811 teachers who were in service when the government agreed to pay salary increases of up to 150 per cent in five phases beginning from 1997 would benefit from this deal. It must be noted that the time difference - from five years to 10 years - of implementation was occasioned by two payment plans.
According to one of them, the deal be addressed in two phases from 1997 to 1999. Then two, that there were three years of disagreement (2000 – 2002) in which after discussions, the implementation schedule resumed in 2003 and was cleared in 2006.
Teachers who retired in between these years and were to benefit from the pay deal instituted a court case. The High Court, in its judgment under the then Justice David Maraga, on October 23, 2008 ordered TSC to process the pension based on the salary award in the 1997 agreement. Also to note is that payment of pension to retired teachers is only made by the Director of Pensions.
The TSC is only charged with responsibilities of preparing the claims and handing them to the pensioner. This poses a challenge of one not being in a position of holding either the TSC or the Pensions Department responsible for not executing payments on time.
The TSC and the Attorney General tried to lodge an appeal against the judgment at the Supreme Court hoping that their reason would prevail. But still, five Supreme Court judges, in a 45-page judgment, disallowed the notice of motion by TSC in December 2015. The bench was led by now retired Deputy Chief Justice Kalpana Rawal, the court re-affirmed the Maraga judgment dismissing the appeal.
TSC was also ordered to pay costs of the suit in the High Court and the Court of Appeal amounting to Sh43 billion. Knut welcomed the development but demanded that all families be paid, including those who have since died since data within the commission has the next of kin for all her employees.
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Due to delays of payment to these teachers, they moved to the High Court seeking orders to hold in contempt, former TSC Secretary Gabriel Lengoiboni. No action was taken and seemingly the matter is still dragging and hasn’t been logically concluded. The TSC was and continues to be in contempt of a court order.
Many teachers come to our offices seeking to be assisted to access their money. We have been able to assist quite a number but feel there are several out there who may not be in a position to access our offices.
Owing to the manner and way in which this matter was handled and the way the pensions department handles retirees' pension, we are of opinion that a legislation be enacted to have pension of workers processed and paid directly by employer and not the Pensions Department since the teachers' dues issue has turned into a disaster.
During campaigns, Kenya Kwanza promised that they would honour court orders and have pending matters implemented as per the judgments. They demonstrated their willingness to honour court orders by swearing in the six judges whom the court had ordered sworn but had not by the previous regime. We are reminding the government that 23,811 retired teachers of the 1997 salary award are yet to be paid their dues.