The National Assembly in a past session.
The Supreme Court has allowed MPs to appeal against controversial allowances payable for committee sittings, previously quashed by the High Court and upheld by the Court of Appeal last year.
A five-judge bench, led by Chief Justice Martha Koome, said it was satisfied that the Parliamentary Service Commission (PSC) had demonstrated a reasonable and excusable cause for delay in filing the appeal.
The Court of Appeal had dismissed the MPs’ appeal in February last year. The PSC had 14 days to lodge its appeal but filed it seven days late. Salaries and Remuneration Commission (SRC) had opposed the appeal saying it would reopen a closed case.
“In our view, a seven-day delay in filing this application is not unreasonable nor inordinate, and in any event, the Applicants (PSC) have given a plausible reason for the delay which has not been seriously contested by the 1st Respondent (SRC), aside from claiming that the reasons given are vague, which vagueness has not been demonstrated in any significant manner,” the court said.
The court dismissed fears by the SRC on reopening of a closed case noting that under Article 163(4) of the Constitution, the Supreme Court has appellate jurisdiction over Court of Appeal decisions, and reopening concluded proceedings cannot prejudice the SRC.
The Court of Appeal had previously ruled that MPs’ fate was sealed when Parliament engaged the SRC and compromised on remuneration and salaries.
The court noted that, in the compromise reached with SRC in 2023, Parliament “submitted to the mandate of the SRC and abided by its directions and supervisory role over it.”
PSC argues in the second appeal that the lower courts failed to address constitutional questions of “monumental importance” regarding its mandate and that of SRC in determining facilitation and services for MPs.
The PSC said the appeal provides an opportunity for the Supreme Court to deliver an “authoritative and impartial interpretation of the Constitution.”
Allowance review
In August 2023, the SRC set allowances for committee sittings at Sh15,000 per sitting for chairpersons (up to Sh240,000 per month), Sh12,000 for vice-chairpersons (up to Sh192,000 per month), and Sh7,500 for members (up to Sh120,000 per month).
The dispute dates back to a 2020 High Court decision that quashed MPs’ self-paid housing allowance. While MPs abandoned efforts to reclaim the housing allowance, they argued that SRC overstepped its mandate by capping the number of committee sittings.
The PSC maintains that SRC’s role ends at prescribing the allowance payable per sitting. It contends that SRC cannot limit the number of sittings, as doing so would undermine parliamentary independence.
The PSC also defended the allowances, noting that SRC abolished sitting allowances for plenary sessions, reduced committee sitting allowances, and limited committee meetings to a maximum of 16 per month.
SRC defended its actions, arguing it acted within its constitutional and statutory mandate, and that the PSC lacks power to set allowances and salaries. It claimed public losses exceed Sh99.5 million per month, or Sh1.194 billion annually, due to the allowances.
SRC further argued that PSC introduced a new term, “accommodation facilitation,” which is not legally recognized. It described PSC’s attempt to set this allowance as a “blatant breach of the Constitution” and stressed that its actions aim to maintain a fiscally sustainable wage bill.
Busia Senator Okiya Omtatah, Katiba Institute, and the Law Society of Kenya (LSK) challenged the allowances. Mr Omtatah argued that the payments would cost taxpayers over Sh1.2 billion annually and gave MPs double benefits, as housing allowance is already included in MPs’ gross pay.
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