Two commissions have been directed to file evidence in a case where some 20 judges have sued over salary disparities.
High Court judge Justice George Odunga ordered the Salaries and Remuneration Commission (SRC), Judicial Service Commission (JSC) and the Attorney-General to file evidence in the case within 14 days.
The aggrieved judges through lawyer Cecil Miller said that the respondents (SRC, JSC and the AG) are seeking harmonisation of salaries between judges appointed from the bar and those magistrates promoted from within the Judiciary.
When the case came up for hearing last week, Mr Miller told the judge that the respondents have not filed evidence to answer the issues raised by the plaintiff Mr Sollo Nzuki.
“The respondents have not filed responses to the case filed by Mr Nzuki despite having been served with the petition in December 2018,” Mr Miller told Justice Odunga.
A state counsel applied for time to answer to the issues raised by Mr Nzuki. In his short ruling, the judge directed the respondents to answer the issues raised by the judges in their petition through Mr Nzuki and prosecuted by Mr Miller.
Judges appointed from private practice into the bench claim they are discriminated.
The judges blame their employer, JSC, for creating the two categories on advice by the Salaries and Remuneration Commission (SRC).
Those who have been appointed from private practice join the bench with a salary of Sh532,500 per month and a non-practising allowance of Sh13,500.
A magistrate who has been promoted to become a judge joins the bench on a higher scale of Sh632,000 together with a non practising allowance of Sh13,500.
“JSC has illegally categorised judges as “those appointed from outside the Judiciary” and “those appointed from within the Judiciary” yet the constitution does not prescribe such categorisation.” Mr Nzuki says in the petition that all the judges need to be treated fairly and equally since they discharge the same duties.
He avers that the JSC on the recommendations of SRC has continued to pay some judges a salary that is lower.
The petitioner says the “outside judges” are being discriminated against by the JSC which appointed them and swore them the same day with those “ from within” to carry out similar duties.
“SRC and JSC has used and applied the illegal and unconstitutional categorisation of judges to determine the starting salary for each category hence entrenching disparity in remuneration thereby resulting in unfair discrimination and oppression of the affected judges,” Mr Miller.
The petition has raised a fundamental question on the independence of the Judiciary under Article 160 of the constitution.
“The petition raises questions of JSC and SRC violating the constitution and the AG failing in his mandate to offer advice the same commissions,” he says.
The matters raised in the case are of great threat to the rule of law and pose danger to the administration of justice. Mr Nzuki states that all judges of the High Court of Kenya are appointed under Article 166 (2) and 166 (5) of the constitution and are State officers within the meaning of Article 260 of the constitution.
The petitioner wants all judges to be remunerated uniformly from the onset.
SRC communicated to the secretary of JSC, Ms Anne Amadi on August 18 2017, setting out the salaries of judges and magistrates.
SRC capped the salary of the Chief Justice at Sh1,327,888 with an entry package of Sh990,000 minus allowances. It set the entry package of the deputy chief justice at Sh821,833 minus allowances and placed a ceiling of Sh1,233,536.
The entry salary of a Supreme Court judge is Sh792,000 minus allowances with ceiling of Sh1,218,535.
Entry salary of Court of Appeal judges is Sh689,224 without allowances. The salary is capped at Sh1,122,759.
A high court judge’s entry package is Sh657,426 and is capped at Sh907,279. A chief magistrate’s entry package is Sh445,500 and capped to Sh650,253.
A senior principal magistrate takes home an entry package of Sh 334,125, which rises to Sh480,000.
A principal magistrate gets an entry package of Sh225,000 and is capped to Sh360,000.
A senior resident magistrate has an entry salary of Sh180,000, which increases to Sh300,000.