The Court of Appeal has suspended a decision directing the Wajir County government to pay its workers Sh73 million arising from salaries which was reviewed downwards seven years ago.
The county employees successfully sued the Wajir County Assembly Service Board two years ago arguing the adjustment of salaries was done without consulting them.
The county board, however, rushed to the Court of Appeal arguing that its chief officers including the county clerk, speaker and head of finance risk being sentenced to jail for failing to implement the judgment issued by Justice Hellen Wasilwa in January 2020.
Court of Appeal judges Agnes Murgor, Jamila Mohammed and Imaana Laibuta noted that the county is unable to pay the amount as it will be in contravention of the Salaries and Commission’s directives and secondly, the amounts demanded have not been included in the existing budgetary allocations for recurrent expenditure, a scenario that places the chief officers at risk of being found in contempt of court.
“In sum, we find that the applicants having satisfied the threshold requirements for the grant of stay of execution, the motion dated 3rd September 2020 is allowed,” the judges said.
The county board argues that the employees’ salaries were reviewed downwards between 2015 and 2016 in line with recommendations of the SRC.
Mr Shalle Sheikh Mursal, the clerk of the assembly said the employees were consulted and notified of the intended salary harmonisation.
He said the review was carried out following an independent consultant’s recommendations to align their job groups and salaries with those of their counterparts at similar levels of employment in the Wajir county public service, and in other county assemblies so that their salaries would conform with the SRC directives.
The employees on their part maintained that the decision was illegal because they were not consulted.
Justice Wasilwa had ruled in 2020 that the unilateral decision by the county board to initiate salary reduction without consultation offends the provision of Section 10(5) of the Employment Act 2007, which is tantamount to a constructive dismissal.
“It is therefore in breach of Article 41 of the Constitution, which provides for fair labour practices for every employee,” the judge said.
After failing to adjust the salary upwards as directed by the court, the employees filed contempt proceedings against chief officers who were summoned to court to show cause why they should not be jailed.
Mr Mursal told the appellate court that it is practically impossible to promote the employees who were initially downscaled.
He further said the reinstatement to the job scales held by some of the employees before commencement of the salary harmonisation and review in January 2015 would mean that employees who have since surpassed the job scales they originally held would be downscaled.