BY SAM ALFAN.
Kenya parliamentarians suffered a major blow after the High Court ordered them to return Sh1. 2 million paid to them as house allowance.
The 416 MPs had been paid the house allowance for five and half months but judges Justices Pauline Nyamweya, Weldon Korir and John Mativo ruled that the pay was illegal.
The court directed clerks of the Senate and National Assembly, to recover the millions within one year.
The Judges further faulted Parliamentary Service Commission (PSC) for encroaching on the mandate of the Salaries and Remuneration Commission (SRC) and granting the MPs house allowance of Sh250,000 and backdating it to 2018.
“Flowing from our finding that the PSC’s decision to set and facilitate the payment to the MPs is ultra vires its constitutional and statutory mandate,” ruled the judges.
They added that it was their finding that by exercising a function not vested upon them by the Constitution, the PSC consequently violated the various constitutional provisions identified above.
The court said the constitution and statutes do not give the PSC powers to set the salaries and allowances of MPs and parliamentary staff. The judges said the only financial functions allocated to the PSC by the constitution are budgetary.
“Hence, PSC’s decision is found to be ultra vires its constitutional mandate and to offend the principle of legality which requires that decisions by public bodies must have their source at the law,” the Judges said.
The court said SRC acted within its mandate by directing the clerks of Parliament not to pay the said allowance and the failure by PSC failed to seek and obtain the approval of the SRC, which is the only body constitutionally mandated to set and pay salaries and remuneration of state officers, was illegal.
“The accounting officers for the PSC and Parliament are therefore also culpable for failing to undertake their obligations under the Public Finance Management Act in this regard. For this reason, we therefore find that the said accounting officers are under an obligation to recover the money paid to MPs,” the Judges said.
Activist Okiya Omtatah and a host of non-governmental organisations challenged the allowance saying it was done by PSC without the approval of the SRC.
Omtatah said the payment will cost taxpayers over Sh1.2 billion annually and the allowance gave the MPs double benefit as house allowance is already included by SRC in MPs’ gross pay.
The activist said the MPs are entitled to a mortgage of Sh20 million per term to cater for their housing needs and any more house allowance would be unreasonable. He added that the allowances awarded to MPs will create inequity in remuneration and benefits for other State officers, thus leading to demands for house allowance by other state officers.
SRC supported the petition saying the decision has resulted in the loss of public funds in excess of Sh99.5 million per month and Sh1.194 billion annually.
The Commission said the decision sets a dangerous precedent in the management of public funds.
The court further heard that a house allowance is a cash benefit paid through the payroll while a housing benefit is the physical building house provided for by the government using taxpayers’ funds to house a state officer.
The SRC argued that the PSC is creating a new term known as accommodation facilitation which term is not provided under any law and the act by the PSC of formulating and setting the said allowance is in blatant breach of the constitution.
