Judges scored a big win on Friday after the High Court directed the Salaries and Remuneration Commission (SRC) to reinstate a Sh10 million car allowance it scrapped in 2021.
A bench of three judges ruled that the taxable car allowance for judges is protected under the Constitution and cannot be taken away or varied.
Judges Chacha Mwita, Lawrence Mugambi and Patricia Nyaundi termed illegal and unconstitutional the decision by SRC to discontinue the allowance.
“In the circumstances, we have no difficulty in finding, which we hereby do, that the taxable car allowance is a benefit to judges. We must also state that the allowance is a benefit attaching to the office of judge to be enjoyed by the holder of that office on appointment and not to an individual judge as argued by the Attorney-General,” the court said.
Speaking soon after the court decision, SRC Chairperson Lynn Mengich said the commission will appeal against the decision and maintained that the judges were conflicted in handling the matter.
She added that the commission had earlier applied for the matter to be handled through mediation but the application was dismissed by the judges.
“As a commission, we are committed to uphold the constitution and we shall therefore be appealing against the judgement,” she said.
The judges held that the car allowance was a benefit conferred under the former constitution that enabled judges to purchase vehicles for private use.
They explained that the benefit transitioned to the 2010 Constitution by virtue of sections 6 and 7 of the Sixth Schedule as read with Article 210(3) and Article 160 (4).
“Third, the taxable car allowance benefit and subsequent reviews is ring-fenced and protected under article 160 (4) of the Constitution and cannot, therefore, be taken away, altered or varied to the disadvantage of judges,” the court said.
The judges further held that the letter revoking the allowance was in contravention of Article 160 of the constitution and a threat to the independence of the Judiciary.
SRC scrapped the allowance in July 12, 2021, stating that the judges have official cars fully financed and serviced by the State.
The allowance was introduced through a circular on July 12, 2011 by the Head of Public Service but the SRC revoked it arguing that he did not have the constitutional mandate nor the legal authority to do so.
According to the SRC, the benefit adversely impacted the affordability and fiscal sustainability of the public wage bill, resulting in inequity and disparity in benefits to State officers. It maintained that the benefit amounts to double compensation in view of the fact that judges have official transport.
Upon pronouncing the decision, SRC applied to suspend its implementation for a period of 60 days, but it was rejected.
