10 November 2017

Kenyan Ex-MCAs Lose Sh8 Billion Pay for Short Term in Office

Members of the County Assemblies (MCAs) who served in the 2013/2017 period have lost a claim of Sh8 billion which they had been awarded by the high court.

The Court of Appeal has held that the decision which had directed the government to pay them for eight months after the August 8 General Election was made through misinterpretation of the constitution.

Appellate Judge Daniel Musinga in a judgment he read on behalf on two other judges, said that the constitution is the supreme law of the land and should not be interpreted in a manner that makes it to be in conflict with itself.

PUBLIC OFFICE

The 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 thus be wasted," Justice Musinga.

The Independent Electoral and Boundaries Commission (IEBC) and Attorney General had lodged an appeal against the High Court ruling in April, this year 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.

ERROR IN LAW

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 faults the judge for failing to appreciate that there are other elected state officers and whose elections is to be held on the same day, being the second Tuesday in August, in every fifth year namely President, Governors, Senators, Women Representative and Members of Parliament.

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