Lawmakers have defended their Sh250,000 monthly house allowance, saying it is a facilitative accommodation when they are attending to the parliamentary duties in Nairobi.
In an appeal challenging the quashing of the allowance, the MPs also faulted the High Court for directing clerks of the two Houses to recover about Sh2 million from each.
Through Senior Counsel Tom Ojienda, the lawmakers said do not get a consolidated pay but gross salary that is not inclusive of the allowance.
“So long as the Salaries and Remuneration Commission (SRC) only provides MPS with a gross pay exclusive of the allowance, the Parliamentary Service Commission (PSC) is under obligation to provide housing facilitation to MPS, especially when they are in Nairobi,” the petition says.
According to the MPs, the Constitution did not foresee the capping of parliamentary committee meetings, which ad-dress issues of concern to the people, especially “in the guise of saving public money” and in a manner that interferes with the independence and mandate of Parliament.
It was therefore wrong for the three-judge bench to issue retrospective orders seeking to recover the allowance, the lawmaker say.
Late last year, the court faulted PSC for encroaching on the mandate of the SRC by granting the lawmakers house allowance of Sh250,000 each and backdating it to 2018.
Justices Pauline Nyamweya, Weldon Korir and John Mativo said the Constitution and the law do not give the PSC powers to set the salaries and allowances of MPs and parliamentary staff.
“The decision by the PSC is offends the principle of legality, which requires that decisions by public bodies must have their source in the law,” the judges said.
In the appeal, the MPs say the court failed to make a finding and set the record clear as to how they should be accommodated in Nairobi while they attend to parliamentary and legislative business.
According to the MPs, the decision amounts to interference with the independence of the PSC and Parliament as an in-dependent constitutional commission and an arm of government.
PSC and Parliament, Prof Ojienda said, are two independent bodies created by the Constitution, yet the interpretation of the High Court “wrongfully” amalgamated PSC into Parliament.
“The judges erred in their interpretation of the financial functions of PSC under the Constitution and statute. Their interpretation renders PSC powerless and irrelevant though PSC and SRC are at par as independent constitutional commissions established under Chapter 15 of the Constitution,” he said.
By vesting the SRC with exclusive powers to set and approve the payment of accommodation to MPs, the judges erred, he said.
The MPs explained that they have two work stations, which necessitate that they have a house at the county or constituency level, and facilitative house allowance for their accommodation in Nairobi, when they are attending to legislative and other parliamentary business.
SRC challenged the pay saying the move by PSC had resulted in the loss of public funds in excess of Sh99.5 million per month and Sh1.194 billion annually.
The Commission said the decision set a dangerous precedent in the management of public funds and PSC created a new term known as accommodation facilitation, which is not provided under any law.
