Judges who were recruited from outside the Judiciary have won a court battle against the Salaries and Remuneration Commission (SRC) to increase their monthly pay by at least Sh100,000.
High Court George Odunga Wednesday ruled that it was discriminatory to pay judges appointed from outside the Judiciary less than those recruited from within.
The court had heard that judges who were hired from private practice started with a 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.
“To create disparity between those who were 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,” Justice Odunga ruled. He 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 close to Sh6 million given that they were hired in 2014 when the Judiciary tapped lawyers from the private sector to ease the backlog of cases.
Justice Odunga further ruled that the appointment of a High Court judge was a substantive appointment and not a promotion from the position of a magistrate or any other office. He said that the judges must be entitled to similar starting salaries and benefits.
In the matter, Sollo Nzuki, through his lawyer, had stated that High Court judges from the Employment, Environment and Land courts were appointed on the same day and perform similar duties hence it was unfair to pay them differently. He said that as a consequence, those appointed from the private sector ordinarily earned more in their firms and had sacrificed their lucrative income to serve as judges but had instead been disadvantaged, oppressed, ridiculed and discriminated against.
According to Mr Nzuki, the move had ensured and perfected a substantial disparity in judges’ salaries.
He said the decision was contrary to the legitimate expectation of the judges by being offered a starting salary much lower than their predecessors appointed before them. Apart from entrenching inequality, oppression and unfair differential treatment, he said, the action had resulted in a grave absurdity where some judges were earning more than their colleagues who were appointed earlier.
The SRC defended itself saying that the disparity in remuneration of judges appointed on the same day had been addressed and there was no discrimination. It said that there were no complaints from the affected judges and that backdating the amount would be financially unsustainable.
The judges’ employer had argued that magistrates who had served the Judiciary for a long time and were later promoted to judges could not have their salaries reduced and that harmonisation of their salaries with the newly-appointed judges would be subjective.