, NAIROBI, Kenya, Oct 1 – The Salaries and Remuneration Commission (SRC) says that its advice is binding contrary to a ruling by the Employment and Labour Relations Court which awarded teachers a pay increase.
SRC lawyer Pheroze Nowrojee told a five-judge Court of Appeal Bench that the Teachers Service Commission (TSC) can only carry out its mandate after being advised by the Sarah Serem commission.
He argued that without such advice, the Commission cannot set wages.
“We submit that is an error that the advice TSC can take that advice of SRC by necessarily not being bound by it,” he stated.
He further pointed out that SRC is the only body with the authority to conduct an evaluation exercise of the entire public sector and stated that Justice Nduma Nderi exercised his power of discretion wrongly.
Justice Nduma Nderi in his ruling had stated that the advice of SRC can only be observed at the discretion of TSC.
On Wednesday, the Attorney General Githu Muigai argued that the Employment and Labour Relations Court did not have any jurisdiction whatsoever to award teachers a pay increase of between 50 and 60 percent.
Muigai contended that Justice Nduma Nderi’s description of the matter as an economic dispute is not recognised anywhere in law.
In the AG’s opinion, the Judge ought to have taken seriously the role played by the Salaries and Remuneration Commission pointing out that its advisory role was important to the proceedings.
This argument is the government’s main defense in its appeal against the pay rise awarded to the teachers and which Githu described as ‘totally untenable’ and one that can crush the economy – as earlier stated by a government economist.
The AG is now seeking the Court of Appeal’s order to quash the earlier decision of the Industrial Court which awarded the teachers a pay increase.
His sentiments were echoed by the Teachers Service Commission (TSC) lawyer Fred Ngatia who stated that the matter should have gone before a conciliator before being taken up by the judiciary.
TSC insists that it is not in contempt of the court as claimed by the Kenya National Union of Teachers which has declined to call off the month-long strike.
Geoffrey Obura also acting for TSC stated that any award by a court of law must be preceded by voluntary negotiations.
On Tuesday, The Court of Appeal dismissed an application by KNUT which sought to have three judges hearing their case disqualify themselves.