Justice George Odunga. FILE PHOTO | NMG
Summary
- The court had heard that judges who were hired from private practice were paid a starting basic salary of Sh532,500 per month and a non-practising allowance of Sh13,500 while those promoted from magistrates started with a pay of Sh632,000 and a non-practising allowance of Sh13,500.
- Justice Odunga noted that judges recruited from within or outside the Judiciary perform similar tasks and by failing to harmonise their remuneration, the SRC had abdicated its constitutional and statutory mandate.
The High Court has ordered the Salaries and Remuneration Commission (SRC) to increase salaries of judges appointed from outside the Judiciary by at least Sh100,000 in compliance with a decision made in December last year.
Justice George Odunga said the SRC had failed to justify why the judges pay cannot be raised and backdated from the day they were appointed.
The High Court had earlier ruled that it was discriminatory to pay judges appointed from outside the Judiciary less than those recruited from within and ordered for the elimination of the two sets of pay.
The court had heard that judges who were hired from private practice were paid a starting basic salary of Sh532,500 per month and a non-practising allowance of Sh13,500 while those promoted from magistrates started with a pay of Sh632,000 and a non-practising allowance of Sh13,500.
“In the premises, I hereby issue an order of mandamus compelling the 1st Respondent (SRC) herein to implement and effect the decree dated 13th March, 2020 regarding the judgement of this Court dated the 18th day of December, 2019,” the Judge said.
Mr Sollo Nzuki had gone back to court accusing Judicial Service Commission (JSC) and SRC of failing to adjust the pay as directed.
JSC said it had filed a notice of appeal but the case has never been heard. It added that it has no powers to review and set the remuneration of judges and was not in a position to comply with the court’s decision unless SRC issues a circular giving effect to the judgement.
The judges’ employer also said it is seeking to establish the number and names of the judges who are affected with the decision.
Justice Odunga noted that judges recruited from within or outside the Judiciary perform similar tasks and by failing to harmonise their remuneration, the SRC had abdicated its constitutional and statutory mandate.
The ruling means that the Judiciary will have to add at least Sh100,000 on the pay of judges who were hired from private practice.
They will get a lump sum payment for the time they have worked since their appointment date.
This will see some of the judges receiving more than Sh6 million given that they were hired in 2014 when the Judiciary tapped lawyers from the private sector to ease the backlog of cases.
“To create disparity between those who are serving in the Judiciary and those not serving would imply that it is an added advantage for one who is appointed from the Judiciary. That is a disparity that in my view has no legal basis,” said Justice Odunga.
Judge Odunga further ruled that the appointment of a judge of the High Court and courts of equal status (Employment and Labour Court and Land Court) is a substantive appointment and not a promotion from the position of a magistrate or any other office.
As such, the Justice Odunga said the judges are entitled to similar starting salary and benefits.
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