The Supreme Court has dismissed a petition filed by Members of County Assembly (MCAs) pushing to be paid about Sh8 billion, which they claim was as a result of reduction of their terms ahead of the 2017 General Election, upholding a Court of Appeal decision to deny them the pay.
According to the MCAs , their five-year term should have expired on March 3, 2018 but the election date was set for August 8, 2017. Appearing before the Supreme Court, the MCAs, through the County Assemblies Forum (CAF), argued that it was wrong for the Court of Appeal to overturn their compensation, yet their term was reduced by eight months.
They argued that since the law provides that county assemblies are elected for a period of five years, holding the poll in August cut their term by five months for which they must be compensated.
Through lawyer Charles Njenga, the MCAs had argued before a bench presided by Chief Justice Martha Koome that if former members of the Independent Electoral and Boundaries Commission (IEBC) were compensated for loss of term, then the same should apply for them.
However, in a decision issued on Friday, the Supreme Court dismissed the bid, saying public office is exercised for the benefit of members of the public and not the office holder.
"The holders of elective office vie and hold office, not for their private benefit but for the benefit of their constituents on whose behalf they act. The MCAs term in office ended by operation of the Constitution, thereby their claim for legitimate expectation lacked merit," the court said in a statement.
The High Court had in 2017 ruled that they should be paid for their full five-year tenure, but a bench of three judges of the Appellate Court quashed the decision, prompting the MCAs to escalate the battle to the Supreme Court.
The Supreme Court also dismissed the group’s argument that there was a conflict between Articles 177(4) and 177(1)(a) of the Constitution. Article 177(1)(a) provides that election of MCAs is to be held on the same day as a general election of Members of Parliament, being the second Tuesday in August, in every fifth year. Article 177(4) provides that a county assembly is elected for a term of five years.
According to the CAF, there was a conflict between the said provisions vis-à-vis the date of the second General Election of MCAs under the Constitution. CAF stated that the five-year term of the MCAs elected in 2013 should have expired on March 3, 2018, but the election date had been set for August 8, 2017, thereby reducing the legislators’ term.
But the Supreme judges said if the two articles of the Constitution were to be put side by side, they can both be given effect at the same time as demonstrated by the continued election cycle.
The MCAs had been awarded the amount by the High Court but a bench of three judges of the Appellate court quashed the decision, prompting the MCAs to escalate the battle to the Supreme Court.
High Court judge Edward Muriithi had ordered the government to pay the MCAs their monthly salaries until March 2018 saying the law had discriminated against them.
But the Court of Appeal judges said the MCAs would have been entitled to a salary and related emoluments had they rendered service to the public.
Justices Philip Waki, Roselyne Nambuye and William Ouko reversed the award on grounds that it was made through a misinterpretation of the Constitution. The judges said compensating the MCAs the claim would lead to waste of public funds.
The bench also ruled that it was not justified to only pay MCAs after the August 8 general election when other elected state officers were also affected by the reduction of the office terms.
