Members of Parliament will take home less salary come Christmas after the Court of Appeal declined to suspend an order requiring them to refund Sh2.7 billion they allocated themselves as house allowance.
Last year, the High Court found that the lawmakers had illegally allocated themselves the allowance and ordered the Parliamentary Service Commission to recover the money in one year.
Aggrieved, MPs, clerks of the National Assembly and Senate and PSC moved to Court of Appeal, arguing that the High Court misinterpreted the Constitution on the roles of the Salaries and Remuneration Commission viz a viz those of the PSC.
They asked Justices Wanjiru Karanja, Jamilla Mohammed and Gatembu Kairu to suspend the judgment until their appeal is heard and determined.
The SRC opposed the application arguing that MPs are public officers and therefore it has a say on what they take home as salaries.
High Court Judges Pauline Nyamweya (now Court of Appeal judge), Weldon Korir and John Mativo found that PSC had no powers to allocate Sh250,000 monthly to each MP and backdate it to 2018 without the authority of the SRC.
For 26 months, taxpayers paid Sh104 million each month to MPs illegally.
The judges dismissed PSC’s plea that it allows current MPs to earn equal salaries as those who served in the 11th Parliament and to keep the illegal payout.
The bench noted that PSC defied advice by the National Treasury that it ought to seek approvals from SRC and the Controller of Budget before making any payments.
“Even if PSC had the authority to set a housing benefit for the MPs, that decision could not legally benefit the current Parliament. The membership of the PSC comprises sitting MPs. The effect of the decision is to award benefits to themselves during their term thereby the effect, spirit and purpose of Article 116 (3),” the court ruled.
The court also declined to fault SRC for limiting the number of committee sittings.
In this case, PSC claimed that SRC had encroached on its independence. It argued that the allowances were facilitative and enabled lawmakers to effectively serve their constituents.
However, Attorney General Kihara Kariuki, in his response, told the court that it was illegal for MPs to get an additional Sh250,000 each for house allowance as PSC never consulted SRC and the money was not approved.
The AG, SRC, Law Society of Kenya (LSK) and activist Okiya Omtatah had urged the court to force PSC to deduct the amount from the MPs’ salaries and return it to the Treasury.
The case was filed by SRC and it argued that MPs receive 40 per cent of their gross salaries as consolidated allowances, and which cater for all the allowances they are entitled to.
“In cognizance of Parliament’s immense power, the Constitution includes checks to limit House’s power in determining members’ remuneration. Indeed, pay for all state and public officers is a Constitutional issue.
“No person or state organ can determine their remuneration and therefore we urge the court to declare the action of the Parliamentary Service Commission to award Members of Parliament a house allowance of Sh250,000 unconstitutional thus null and void,” senior State Counsel Thande Kuria argued.
At the same time, SRC’s lawyer Peter Wanyama told the court that MPs bulldozed it to ratify 19 allowances for themselves. The lawyer claimed that in retaliation, Parliament went ahead to slash SRC’s budgetary allocation.