Judges appointed from outside the Judiciary have a reason to smile after the High Court ordered that they be paid the same salaries as their colleagues promoted from within.
Justice George Odunga ruled that it was discriminatory for lawyers appointed to the bench from private practice to get lower pay than those promoted from within the Judiciary, and ordered the Salaries and Remuneration Commission to harmonize their pay.
Judicial system
“Being an appointment, whether one comes from within or outside the Judiciary, they are at par in so far as their remuneration is concerned. None should be disadvantaged based on where he or she comes from,” ruled Justice Odunga.
According to the judge, creating a disparity between those serving in the Judiciary and those not serving gives an added advantage to those already in the judicial system without any legal basis.
His decision came as a huge relief for several judges who were appointed from legal practice after the promulgation of the 2010 Constitution as the court ordered that their harmonized pay be backdated to the time they were appointed.
Justice Odunga made the judgment in a petition filed by Sollo Nzuki, challenging the decision by SRC and the Judicial Service Commission to lower salaries of those joining the Judiciary as judges from private practice.
The petitioner had, through lawyer Cecil Miller, argued that it was unlawful for JSC and SRC to discriminate in offering starting salaries for High Court judges, where those from within were considered to have been promoted and offered higher perks.
Odunga agreed with the submissions and declared that paying a salary lower than those promoted from magistrates is unconstitutional. “Judges, whether appointed from within the judiciary or outside perform similar tasks. There is no intelligible differentia, which distinguishes a judge recruited from within the judiciary and one recruited from outside the Judiciary,” he ruled.
Further, he stated that failure to harmonise the remuneration of judges, the SRC is abdicating its constitutional and statutory mandate.
Justice Odunga ruled that remuneration of judges was one of the tenets of the independence of the Judiciary and that remuneration and benefits payable to judges was constitutionally ring-fenced and should not be varied to disadvantage some. “A judge whose post-retirement is uncertain is bound to be exposed to many unethical things,” ruled Odunga.
According to Justice Odunga, having indefinite packages for judges may expose them to external interference.
He said though SRC had the mandate to set salaries for State officers, it must take into account principles of non-discrimination.
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