, NAIROBI, Kenya, Nov 10 – The Court of Appeal has quashed a decision by the High Court awarding Sh8 billion to Members of the County Assembly who served in 2013-2017 period.
The court held that an order directing the government to pay them for eight months after the August 8, General Election was made through misinterpretation of the Constitution.
In judgment read by appellate Judge Daniel Musinga, the court found that the Constitution being the supreme law of the land should not be interpreted in a manner that makes it to be in conflict with itself.
In the quashed ruling, High Court judge Edward Muriithi had held that the MCAs are entitled to an order for payment of damages for loss of income for the incomplete term of office cut short by reason of the elections being held before the expiry of their constitutional term of five years.
The appellate court however stated that public officers do not have right to a public office, and that ordering that they be paid at a time when new MCAs would have also been elected into office, will amount to loss of public funds.
“That interpretation was bound to create confusion given that former MCAs and presently elected MCAs will be fighting for remuneration. Public funds will be wasted,” Justice Musinga said.
The Independent Electoral and Boundaries Commission (IEBC) and Attorney General had lodged an appeal against the High Court ruling in April that the five-year tenure for MCAs ends on March 3, 2018 in line with Article 177(4) of the Constitution that provides they serve for five years.
IEBC through lawyer Edwin Mukele had argued that the High Court had allowed MCAs who are neither elected nor nominated, as provided for in the Constitution, to continue serving as such for an extended period of eight months.
The Attorney General through State Counsel Jennifer Gitiri argued that Justice Muriithi made an error in law by failing to appreciate that Article 194(1) (f) of the Constitution which provides that the office of MCA becomes vacant at the end of the term of the assembly, which is just before the general elections is held.
The AG further faulted the judge for failing to appreciate that there are other elected state officers whose election was to be held on the same day, being the second Tuesday of August, in every fifth year namely President, Governors, Senators, Women Representative and Members of Parliament.