KAKAMEGA, Kenya Sept 20 – The High Court in Kakamega County has quashed the enactment into law of the Kakamega County (State Officers) Pension Scheme, Act, 2022, by the County Assembly of Kakamega, terming it unconstitutional, null and void ab initio.
The Salaries and Remuneration Commission (SRC) sought legal redress following the enactment of the impugned Act, claiming the County Assembly of Kakamega went contrary to Article 230(4)(a) of the Constitution, and in excess of the retirement benefits SRC set out in the Gazette Notice of 1 March 2013, and subsequently reviewed in Gazette Notices of 27 July 2022. SRC contended that the Constitution is clear on the powers and functions conferred on county governments, which do not extend to setting and regularly reviewing the remuneration and benefits for State officers in county governments.
While agreeing with SRC, Lady Justice Jacqueline Nyambura Kamau, Justice Patrick Juma Okwaro Otieno, and Lady Justice Chirchir Sophie Chebet granted that the setting and regular review of remuneration and benefits, including retirement benefits, for State officers in the county government is a function that is exclusively vested in SRC.
The Court declared that the Kakamega County Assembly acted in violation and contravention of legislative authority conferred on county assemblies under Article 185 and the Fourth Schedule of the Constitution.
On public participation, SRC averred that the entire legislative process undertaken by the Kakamega County Assembly did not engage SRC, and that meaningful public participation was not carried out, consistent with constitutional imperatives.
In failing to conduct stakeholder engagement and public participation before conferring retirements benefits to the Governor, Deputy Governor, Speaker and Members of County Assembly from 8 August 2017, the court declared that the Kakamega County Assembly violated and contravened the provisions of Article 10 of the Constitution.
SRC asserted that if implemented, the hefty retirement benefits in the impugned Act would be fiscally unaffordable, unsustainable and pose a significant burden to taxpayers.
The annual cost implication for State officers who serve for one term is approximately Ksh 120,609,594, while for those that serve for two terms is approximately Ksh 285,062,036.
State officers at the county government level have options for two retirement benefits; either pension or gratuity, but not both for the same period.
Any proposed pension scheme must be submitted to SRC for concurrence prior to its establishment.