The Supreme Court yesterday rejected an application by the Parliamentary Service Commission seeking to suspend a judgment ordering Members of Parliament to refund Sh1.2 billion that was unlawfully paid to them as allowances in 2018.
Lady Justice Njoki Ndung’u declined to suspend the High Court judgment that had in 2020 ruled that the money was siphoned from taxpayers.
“I decline to certify the matter as urgent and order the case by Parliament to be placed before the Deputy Registrar, who shall give directions on compliance for determination by a five-judge Bench,” ruled Ndung’u.
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The judge also declined to issue a temporary order staying the Court of Appeal’s ruling that was delivered in December last year, which had directed Clerks of both the National Assembly and Senate to recover the Sh1.2 billion that had already been paid out to MPs as accommodation and facilitative allowances pending hearing and determination of the appeal.
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MPs, through lawyer Tom Ojienda, had lodged the application under a certificate of urgency at the apex court challenging the Court of Appeal’s decision that upheld the High Court ruling, which quashed the Sh250,000 house allowance paid to each MP on grounds that it was not approved by the Salaries and Remuneration Commission (SRC).
Aggrieved, the lawmakers, through PSC, moved to the Supreme Court, arguing that the two lower courts misinterpreted the Constitution on the roles of SRC vis a vis those of PSC.
MPs petitioned the Supreme Court to suspend the Court of Appeal’s judgment delivered by justices Wanjiru Karanja, Jamilla Mohammed and Gatembu Kairu until their appeal is heard and determined.
“A conservatory order is issued staying ruling and order of the Court of Appeal judges Karanja, Gatembu and Mohammed delivered on December 3, 2021 directing the applicant to recover Sh1.2 billion that was already paid out to MPs as accommodation, facilitation allowance pending the hearing and determination of the application,” the MPs stated in the application.
Illegally allocate
In 2020, the High Court had ruled that the lawmakers had illegally allocated themselves the allowance and ordered PSC to recover the money in one year.
Court directed clerks of the National Assembly and Senate to recover in full the monies from each of the MPs’ allowances and salaries within one year.
High Court judges Pauline Nyamweya, Weldon Korir and John Mativo ruled that SRC acted within its mandate by directing the clerks not to pay the allowance.
This, the judges stated, did not interfere with the independence of Parliament and PSC. Judges found that PSC had no powers to allocate the Sh250,000 monthly house allowance to every MP without SRC’s authority.
The court 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 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),” High Court judges ruled.
Gross salaries
The Attorney General, SRC, Law Society of Kenya 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.
Case was filed by SRC, which 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.
The 416 MPs had been paid the allowance for eight months before the High Court stopped the pay.
“Flowing from our finding that PSC’s decision to set and facilitate the payment to the MPs is ultra vires its constitutional and statutory mandate,” the judges had ruled, maintaining that the Constitution and statutes do not give PSC powers to set the pay for lawmakers and parliamentary staff.
“The accounting officers for PSC and Parliament are, therefore, also culpable for failing to undertake their obligations under the Public Finance Management Act in this regard.
For this reason, we, therefore, find that the said accounting officers are under an obligation to recover the money paid to the MPs,” added the judges.
Lady Justice Njoki Ndung’u
