Two decades later: Retired teachers want TSC to pay their dues
Retired Teachers Association officials Gidraff Kimatta (secretary), Joseph Mwenja (chairman) and David Kamau (vice chairman) at their offices in Nakuru City on August 17, 2023.
In 1997, the Kenyan government entered into an agreement with the Kenya National Union of Teachers to increase their salaries and accrued pensions in a bid to bring to an end a protracted teachers’ strike.
In the agreement contained in the legal notice no 534 of November 11, 1997, the Teachers Service Commission committed to paying all teachers, who were serving and those who were on leave pending retirement from July 1, 1997, a lump sum pay over and above their monthly salaries.
The award amounting to Sh42.3 billion was to be implemented in five phases, where the lowest paid teacher was to get 200 percent of their earnings as at July 1997, while the highest paid teacher was to get 150 percent rise.
However, after the payment of the first phase in 1998, no further payment was made.
Upon losing patience with the government, six teachers, who had since retired, embarked on a legal journey to have TSC compelled to honour the agreement.
On behalf of 50,000 colleagues, the six—Gidraff Kimatta, Joseph Mwenja, Daniel Kamau, Simon Kamau, Samwel karanja and Patrick Mwangi—filed a case against the government in 2004 through the firm of Kimatta and Company advocates at the Nakuru High Court.
And while the case was successful across the ranks of the Judiciary, their objective is yet to be achieved 20 years later.
The October 2008 judgment by the then Nakuru High Court Judge David Maraga, who ruled that the teachers were entitled to full salary increment as at the time of their retirement, was a momentous one. But little did they foresee the new herculean task that lay ahead of them of having the judgment orders implemented.
Despite the judgment being confirmed by the superior courts, including the Court of Appeal and the Supreme Court, the retirees are still battling for their rightful dues.
Though they remain steadfast in the fight, their age is fast failing them. In their sunset years, the former civil servants are frail and sickly, and time is not on their side.
Of even greater concern is the health and status of their officials, who have been spearheading the fight.
The office bearers who are in their advanced ages have been plagued with death, sickness and incapacitation.
At the Retired Teachers 1997 group office located on the third floor of the Equator building along Nakuru city’s Kenyatta Avenue, there’s little movement along staircases of the building which used to be busy with the high number of retired teachers who frequented the office.
But now, the office is seldom open as the officials only converge once a week.
When the Nation visited the office on Wednesday, we found a receptionist who ushers us into one small office occupied by the retirees’ chairman Mr Joseph Mwenja, who was in the middle of a discussion with his Vice Chairman Mr David Kamau. We are joined by Mr Gidraff Kimatta, the secretary.
It was around midday and Mr Mwenja informed us that the three who were expecting our visit had arrived 15 minutes earlier.
The don, in his characteristic three-piece suit marching with his greying black hair and a pair of glasses, had one huge file on his desk. The file contains a summary of the case with copies of court orders, applications and newspaper cuttings.
He looks tired but is still hopeful.
He informs us that only three of the officials were able to make it for the meeting. We learn that Mr Karanja, the assistant treasurer, has already passed on, while the treasurer Simon Peter and the assistant secretary Patrick Mwangi are ailing and had stopped coming to the office.
Later on, Mr Mwenja invites his secretary to brief us on the court journey.
Mr Kimatta, the sharp, eloquent and interesting speaker, is seated to his left. The secretary who has always emerged as a vocal and energetic man in his previous press briefings has a noticeable challenge walking. His well-groomed hair has turned white.
But at 81 years and with declining energy, he still has the mojo in his speech.
Mr Kimatta reminisces about the events leading to the filing of the case in 2006. He was about seven years into retirement after hanging his boots from Our Lady of Mercy Primary School in Bahati.
He admits receiving the first phase of the award in November 1997, which was a 35 percent increment, but he never got the remaining chunk.
“They had calculated my pension using the wrong salary so I had both salary arrears and accrued pension,” he said.
In 2005 he teamed up with Mr Mwenja who retired in 2003 from Kiungururia Primary School in Mbaruk and Mr Kamau, the former Jacaranda Primary School head teacher, alongside three other officials to move to court in a bid to compel the government to pay their right amounts.
“After visiting different law firms in Nakuru we settled on Mr Dominic Kimatta whose terms were favourable to us. His firm wrote to the Teachers Service Commission informing it of the intention to sue should it not pay the money as per the agreement,” said Mr Kimatta.
They then mobilised 20 other teachers to join the petition that was filed before at the High Court in Nakuru, whose presiding judge was Justice Maraga.
“It was difficult to convince the retired teachers to join the case because they thought it was not possible to sue the government. But when we filed the case the rest from across the country joined us,” said Mr Kimatta.
And after a two-year trial, Justice Maraga pronounced himself and ruled in favour of the teachers.
“After the ruling, the TSC went quiet for a year before we discovered they had moved to appeal and the case had stalled there. We wrote to then Chief Justice, the late Evans Gicheru, who directed the Court of Appeal to expedite the case,” said Mr Kimatta.
On November 12, 2010 Court of Appeal judges Justice Ole Kirwa, Onyango Otieno and JJ Nyamu upheld the decision by the High Court.
Following the second round of wins, the retired teachers instituted a judicial review application before the Nakuru High Court seeking to compel the TSC to comply with the orders.
But before the applications could be determined, then Attorney General Githu Muigai appealed the ruling at the Supreme Court. The Supreme Court struck it out on grounds that the matter had been concluded by the Court of Appeal which was then the highest court on the land.
In 2015, the former TSC Chief Executive officer Gabriel Lengoibon was held in contempt of court for failing to comply with the orders to pay the money.
He retired and left his successor Nancy Macharia with the burden. Ms Macharia on her part blamed the pension’s office for failing to release the money despite being served by the claims from the TSC.
Nakuru High Court judge Janet Mulwa in her orders of August 15, 2016 directed the director of pension, Mr Shem Nyakutu, to disburse the Sh1.5 billion allocated in the budget to the retired teachers starting from those who retired in 1997.
However, Mr Nyakutu, who was later summoned to court, was slapped with a Sh200,000 fine for contempt of court over his failure to obey the orders for the payment of the retirees’ dues.
In a bid to ensure compliance, the court had summoned a number of officials to shed light on the matter including the controller of Budget Agnes Odhiambo and the Auditor General.
Mr Kimatta explains that the matter has continued to drag on in court despite the numerous efforts deployed.
According to the secretary, at least 4,000 members have already passed and the majority are ailing.
He explains that the matter has been debated many times in both the National Assembly and the Senate but each time the ministries make promises which they do not fulfil.
The matter was first discussed by Parliament in 2010 where the Education minister was summoned to explain the matter which was attracting public attention.
Appearing before Parliament on December 7, 2010, the then assistant minister for Education Prof Patrick Olweny explained that the amount owed to the retired teachers totalled to Sh42.3 billion.
“Mr Speaker sir, the amount involved is quite substantial, the retired teachers’ salary arrears from 1997 to 2007 alone amounts to Sh8,215,217. The pension pay-out will be the total lump sum paid, that is Sh13, 204,822. The monthly pensions to those retired teachers will total to Sh20,689,850,” read part of the Hansard report of December 7, 2010.
Prof Olweny promised to request the then Deputy Prime Minister and Minister for Finance Uhuru Kenyatta to include the amount in the supplementary estimates for the following year.
The matter was further discussed by Parliament on April 30, 2015 where a resolution was made to have the retired teachers paid their money. This led to the allocation of Sh1.5 billion in the supplementary budget towards payment of the claims.
However, Mr Kimatta says only 7,000 out of the total 52,000 teachers have so far been paid part of the dues.
In the recent case, Treasury Cabinet Secretary Njuguna Ndung’u appeared before the Senate Committee on Education on August 7 after he made claims that the Treasury had paid Sh16.08 billion to 23,487 retired teachers.
The teachers had protested Prof Ndungu’s assertion, which they termed misleading as the matter was still pending determination before court.
The former teachers complained that the ministry has refused to consult them leading to the underpayment of dues to those who have already received.
“Even the ones who have received their dues have been grossly underpaid due to the fact that the TSC has never involved the teachers in the calculations as ordered by the Court of Appeal. Let no one discuss the issues of the retired teachers without involving us,” said Mr Kimatta.
In their push for their dues, the retirees suffered a huge blow in 2020 when their lawyer Dominic Kimatta passed on during the Covid-19 period.
Mr Kimatta had been with the teachers since 2005 and had all the facts of the case at his fingertips.
“We all believed in him as he had helped us win the case in court. Mr Kimatta had taken our case as his and had vowed to take no payment until we are all paid so his death threw us back to the drawing board,” said Mr Mwenja.
Finding a new lawyer was another challenge since they had no money to foot the legal expenses. The case thus stalled for over a year before another lawyer, David Ikua, agreed to take it over.
Currently, an application is pending before the Court of Appeal which seeks to review a ruling by Justice Janet Mulwa that declared that the amount owed to the teachers is Sh16 billion and not Sh43 billion.
The journey has been a difficult one and has weighed heavily on the officials.
Mr Mwenja lamented that the sufferings and deaths of their members have subjected them and their families to mental trauma as they feel helpless.
“It pains us to see the poor teachers, who diligently performed their duties, leading miserable lives instead of enjoying their sunset days in peace. The families of those who departed visit this office frequently only for us to encourage them to keep their hope alive,” said Mr Mwenja
He regretted that the government has decided to violate the rights of its elderly citizens by subjecting them to pain and suffering.
According to the chairman, the officials are being forced to use their own resources to keep the office running and sometimes beg a few members for funds.
A huge rent arrear is also threatening their stay in the office and they have been forced to cram in one small space.
With coordinators across the 45 counties, the officials are now apprehensive that they could pass on before they receive their dues.
However, they have continued to keep hope alive and take pride in their service as teachers despite the struggles.
“We are proud teachers and do not regret. Almost all the current leaders both in the public or private sector went through our hands and it is only prudent that they give back by ensuring that the orders of the court are enforced,” said Mr Mwenja.
According to him, the judiciary has already played its part but the enforcers of the orders are the ones failing them.
“We have a robust judiciary but it is unfortunate that those charged with enforcing the decisions are not sincere. Why should a government official lie about paying our money when we are still alive? Why can’t they respect the rule of law?” posed Mr Mwenja.
