The Teachers Service Commission (TSC) has moved to the Supreme Court to block the pay increment awarded to teachers by the Labour Court.

TSC filed an application yesterday under a certificate of urgency, claiming both lower courts erred in law when they ordered that it should pay the new salaries.

The teachers’ employer held a similar stand as it had done in both the Labour and Appellate courts that it had no funds to pay the increased salaries. TSC stated that it required Sh73 billion annually to service the pay hike.

The Court of Appeal had ordered TSC to pay teachers but the commission now claims the second highest court in the land disregarded its plaint that the award was issued illegally. “Any payment towards salary and allowances is irreversible under the law and human resource practice. Further, there are some allowances that are pegged on basic salary, for instance, the hardship allowance, which is 30 per cent of the basic salary,” TSC’s lawyer Fred Ngatia said in his court papers.

TSC lost the first round of its appeal against a 50 to 60 per cent salary increment after the Appellate Court directed that the new pay deal be implemented from this month.

Appellate judges Jamilla Mohamed, Mohamed Warsame and Sankale ole Kantai made orders that were tied to the application made before the court.

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The judges had warned that if TSC would not pay as from August 1, the application before them would stand dismissed.

However, lawyer Ngatia said the two lower courts illegally took over the role of the commission to remunerate the teachers.

“The order to pay the increased salaries to teachers was made contrary to the Constitution. The execution of the said order will be a continued misinterpretation of the Constitution and constitutes an illegal precedent,” Ngatia said.

 Public funds

He said Appellate judges also disregarded budgetary process. The lawyer held that the money required to pay teachers would have to be approved by Parliament before being released by the Treasury.

“The funds involved are public funds and amount to Sh73 billion. The same arising from the current government fiscal year have no budgetary sanction from the Parliament and also cannot be diverted from other heads,” he added.

The commission claims the package awarded to the 280,000 teachers by Employment and Labour Relations judge Nduma Nderi and upheld by the Court of Appeal is unrealistic and would hurt the economy.

“The pay is against public interest and will hurt the economy,” TSC Chief Executive Officer Nancy Macharia said.

Ms Macharia said the judges disregarded the role of the Salaries and Remuneration Commission (SRC).

It will now be left to the Kenya National Teachers Union and Kenya Union of Post Primary Teachers’ lawyers to battle the new hurdle on August 13 when the case comes up for hearing.