, NAIROBI, Kenya, Nov 6 – The Court of Appeal has nullified the 50 to 60 percent pay increment awarded to public school teachers by the Employment and Labour Relations Court in June.
A five judge bench composed of Justices Erastus Githinji, James Odek, Festus Azangalala, Martha Koome and Philomena Mwilu unanimously found that Justice Nduma Nderi acted in excess of his power when he ordered the increment.
They adjudged he erred when he ignored the Salaries and Remuneration Commission’s opposition to the increment after finding that its advice is binding and that the Teachers Service Commission (TSC) is required to seek its advice before making any offers to the teachers.
“The court cannot usurp the powers of a constitutional commission,” Justice Koome.
By majority they also found that Nderi erred by turning TSC’s petition on the legality of the strike called by teachers in January, into a trade dispute and thereafter taking on the role of conciliator.
Majority on the bench found that Nderi acted outside the scope of the petition that was before him as the parties to the suit did not agree to conciliatory talks. Thereby, they found, Nderi acted ‘suo moto’ (on his own volition) contrary to contract law.
The decision to award a 50 to 60 percent pay increment, they found, was also flawed as it was based on an offer TSC made prior to seeking the SRC’s advice.
They also found that at the time Nderi was seized of the matter, the offer was no longer on the table as the Kenya National Union of Teachers and the Kenya Union of Post Primary Education Teachers had rejected it.
Justices Koome and Mwilu did however sympathise with the situation in which Nderi found himself; under pressure to resolve the impasse between the unions and TSC expeditiously and decisively.
Koome wondered why the SRC did not commence a job evaluation of teachers until April and gave them 90 days to hand over their report to TSC. TSC and the unions, she said, would then have 30 days to register a Collective Bargaining Agreement.
Her orders were however not captured in the final decision with Paul Muite, speaking for the unions, announcing that they would appeal to the Supreme Court.
On whether or not TSC had a right to be heard in the first place given its failure to comply with the court’s conservatory order to effect the pay rise from August, the bench reached a unanimous decision; that they did.
They found that TSC’s Constitutional right to appeal by default required that they be given a hearing.