Judges scored a major victory on Friday after the High Court ordered the Salaries and Remuneration Commission (SRC) to reinstate a Sh10 million car allowance that it scrapped in 2021.
A three-judge bench ruled that the taxable car allowance for judges was protected by the Constitution and could not be withdrawn or altered.
Judges Chacha Mwita, Lawrence Mugambi and Patricia Nyaundi said the SRC's decision to withdraw the allowances for all judges was illegal and unconstitutional.
The SRC scrapped the Sh10 million allowance in a letter dated July 12, 2021, saying judges have official cars that are fully funded and maintained by the state.
Judges scored a major victory on Friday after the High Court ordered the Salaries and Remuneration Commission (SRC) to reinstate a Sh10 million car allowance that the commission scrapped in 2021.
A three-judge bench ruled that the taxable car allowance for judges was protected by the Constitution and could not be withdrawn or altered.
Judges Chacha Mwita, Lawrence Mugambi and Patricia Nyaundi said the SRC's decision to withdraw the allowances for all judges was illegal and unconstitutional.
“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,” Justices Chacha Mwita, Lawrence Mugambi and Patricia Nyaundi said.
The judges held that the taxable car allowance was a benefit of the office of a judge and was conferred under the previous Constitution as a duty-free car allowance to enable judges to purchase vehicles for private use.
The court added that by virtue of Sections 6 and 7 of the Sixth Schedule to the Constitution read with Article 210(3) of the Constitution, the benefit was transferred to the 2010 Constitution as a benefit under 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,” said the judges.
The SRC withdrew the Sh10 million allowance in a letter dated July 12, 2021, stating that judges have official cars that are fully funded and maintained by the state.
The petition was filed by Peter Gachuiri Mwangi, who sought the reinstatement of the allowances for High Court, Court of Appeal and Supreme Court judges that the judicial officers had been enjoying since 2011 before the SRC withdrew it.
The allowance was introduced by a circular issued by the Head of Public Service on July 12, 2011, but SRC revoked it on the grounds that it did not have the constitutional mandate or legal authority to introduce, confer or vary any remuneration or benefit to the then public servants.
In opposing the allowance, the SRC argued that prior to the new constitution, the entire issue of remuneration of state and public servants was handled in an unstructured manner.
According to the SRC, the allowance adversely affected the affordability and fiscal sustainability of the public wage bill, resulting in inequity and disparity in benefits to state officers and therefore had to be revoked.
The SRC argued that the benefit amounted to double compensation in view of the fact that judges have official transport.
The Commission added that it has defined official transport in the form of motor vehicles purchased and maintained by the Government for the use of the State official or official transport in the form of motor vehicle reimbursement, car maintenance allowance and mileage reimbursement or commuter/transport allowance for those without official transport.
In the case of officers of the Executive and Constitutional Commissions and Independent Offices, official transport is provided to state officers.
The SRC said it had also established a car loan allowance at an interest rate of 3 per cent per annum for all state officials, including judges.
However, the judges said the letter withdrawing the allowance violated Article 160 of the Constitution and threatened the independence of the judiciary.
The petition was opposed by the SRC and Attorney General Justin Muturi, but the court rejected Mr Muturi's arguments that the allowance ceased to exist under the new constitution.
According to the court, judges were allowed to purchase duty-free vehicles under the repealed constitution.
Following the ruling, the SRC applied for a 60-day stay on the implementation of the ruling, but the court refused.
