It may be too early for siting Members of County Assembly (MCAs) to celebrate an April ruling directing the government to pay them for eight months after the August 8 elections are held.
Attorney General Githu Muigai has lodged an appeal against the verdict where High Court judge Edward Muriithi ruled 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.
MCAs were all elected in the March 2013 polls to serve in the 47 county assemblies for the first time.
Currently, there are 2,526 MCAs each earning a basic monthly salary of Sh165,000, meaning each will get a total of Sh1.32 million for the eight months.
The AG argues that the judge 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 are held.
“By this, the judge departed from the decision of the Court of Appeal’s definition of a ‘term’ and formulating his own,” said court papers filed by State Counsel Tuesday.
The AG is also faulting the judge for failing to appreciate that there are other elected public officers including Governors, Senators, Women Representatives and Members of Parliament, who could also follow the move by MCAs.
The government reckons the interpretation by the High Court perpetuated discrimination by treating Assembly members preferentially from other elected officers without justifiable cause, contrary to the constitution.
State Counsel adds that Justice Muriithi misinterpreted the constitution when he made a finding that the MCAs are entitled to payment of damages for loss of income due to an incomplete tenure cut short by polls being held before expiry of their five year-term in office.
“In arriving at the entirety of the decision, the learned judge of the High Court erred in law and fact in disregarding all laws and previously decided cases of superior courts relating to the term of office of elected officials,” the AG's office said in court papers.
The government is seeking orders that the entire High Court judgment be nullified.