Refund Sh1.2b allowances, MPs ordered
Members of Parliament will now refund Sh1.2 billion taxpayers' money they unlawfully awarded themselves in 2018 as house allowance.
The Supreme Court rejected the legislators’ plea to suspend a judgment declaring the money was illegally siphoned from the taxpayer.
Yesterday, a five-judge Bench chaired by Deputy Chief Justice Philomena Mwilu dismissed an application by the lawmakers to grant an order staying the Court of Appeal’s decision directing both Clerks of the National Assembly and the Senate to recover the Sh1.2 billion that was already paid out to MPs as accommodation and facilitative allowance pending the hearing and determination of the main appeal.
The Bench dismissed the application by the MPs and Senators saying it lacked merit and sent them back to the Court of Appeal for the hearing of the main petition.
While dismissing the application, the apex court noted that the substantive appeal is still pending before the Court of Appeal for hearing and determination and that there was no determination of any constitutional question by the Appellant court so far on the main appeal challenging the High Court decision.
“We find that the Notice of Motion dated December 21, 2021, challenging the exercise of discretion by the Court of Appeal under Rule 5(2) (b) of the Court of Appeal Rules, in the absence of a substantive judgment of the Court of Appeal, this application is premature and does not meet the threshold under Article 163 (4) (a) of the Constitution,” the five judges ruled.
But National Assembly Clerk Michael Sialai said that the Parliamentary Service Commission had been effecting deductions on MPs’ salaries to recover the money since December 2021.
“We implemented (deductions) in December 2021 and all recoveries would have been made by end of June 2022,” he said.
SRC approval
The MPs, through lawyer Tom Ojienda, lodged an application under a certificate of urgency at the Supreme Court challenging the Court of Appeal decision of December last year that upheld the High Court ruling that quashed the Sh250,000 each MP received as housing allowance without the approval of the Salaries and Remuneration Commission (SRC).
Aggrieved MPs, Clerks of the National Assembly and Senate and PSC moved to the Supreme Court, arguing that the Court of Appeal and High Court misinterpreted the Constitution on the role of the Salaries and Remuneration Commission vis-a-vis those of the PSC.
Parliament had requested the Supreme Court to suspend the decision of the Court of Appeal delivered by Justices Wanjiru Karanja, Jamilla Mohammed and Gatembu Kairu until their appeal is determined.
“A conservatory order is issued staying ruling and order of the Court of Appeal judges Karanja, Gatembu, Mohammed delivered on December 3, 2021, in Civil Appeal number E 409 of 2020 PSC and others Vs. SRC and others directing the applicant to recover the Sh1.2 billion that was already paid out to MPs as accommodation, facilitation allowance pending the hearing and determination of the application,” the MPs said.
In 2020, the High Court found the lawmakers had illegally awarded themselves the allowance and ordered the Parliamentary Service Commission to recover the money in one year.
The High Court judges Justices Pauline Nyamweya, Weldon Korir and John Mativo ruled that the SRC acted within its mandate by directing the Clerks of the Parliament not to pay the allowance.
They found that the commission had no power to award Sh250,000 monthly allowances to every MP and backdate it to 2018 without the authority of the SRC.
For 26 months, taxpayers paid Sh104 million each month to MPs illegally.
The judges dismissed PSC’s plea that it allows current MPs to earn equal salaries as those who served in the 11th Parliament and to keep the illegal payout.
The court noted that PSC defied advice by the National Treasury that it ought to seek approvals from SRC and the Controller of Budget before making any payments.
“Even if PSC had the authority to set a housing benefit for the MPs, that decision could not legally benefit the current Parliament. The membership of the PSC comprises sitting MPs. The effect of the decision is to award benefits to themselves during their term thereby the effect, spirit and purpose of Article 116 (3),” the High Court judges ruled.
