The Judicial Service Commission (JSC) and the salaries commission are at odds over a proposed law that seeks to give preferential treatment to retired judges of the superior courts.
While JSC is pushing MPs to fast-track the passage of the Judges Retirement Benefits Bill 2025, which aims to establish a pension framework for retired judges, the Salaries and Remuneration Commission (SRC) has said that some clauses encroach on its mandate.
In a brief submitted to the Constitutional Implementation Oversight Committee (CIOC) of the National Assembly, JSC Vice-Chairperson Isaac Rutto acknowledged delays in the enactment of the Bill, saying “it is denying retired judges fair compensation in line with rising living costs”.
“The Bill seeks to establish a dedicated pension framework for judges of the superior courts, providing for annual pension adjustments pegged at 5 per cent,” the CIOC report captures Mr Rutto saying.
The superior courts are the Supreme Court, Court of Appeal, High Court and any courts with the status of the High Court. The memorandum and statement of reasons for the Bill note that it has been in development since the late 1990s.
Salaries and Remuneration Commission chairperson Sammy Chepkwony.
Photo credit: File | Nation
By enhancing retirement packages including pension, post-retirement transport and medical benefits, the Bill gives retired superior court judges preferential treatment over other public servants, who are not entitled to similar inflation-adjusted benefits.
However, SRC opposes the Bill on the grounds that it has not been developed in line with its constitutional mandate and violates the principle of fiscal sustainability.
JSC, however, downplayed SRC’s concerns: “The commission noted concerns raised by the SRC regarding jurisdictional overlap but emphasised the unique demands of judicial service that justify a dedicated pension framework.”
The SRC memorandum warns that extending enhanced benefits to judges may trigger “legitimate clamour” for similar benefits by other State officers.
“This could result in a significant ripple effect across the public sector, thereby exacerbating an already constrained fiscal space and undermining efforts towards sustainable public compensation management,” the memorandum states.
In the Bill, “pensionable emoluments” include both the basic salary and house allowance payable to a judge, a definition SRC does not agree with.
“The commission recommends that, for purposes of equity and harmony in defining pensionable emoluments, the clause be amended to provide that ‘pensionable emoluments’ means the basic salary payable to a judge as set by SRC,” the SRC memorandum reads. “This will ensure harmony and fairness in the definition of pensionable emoluments as has been applied to other state officers.”
Under the proposed framework, judges will contribute 7.5 per cent of their salaries during service, with the government contributing 15 per cent. Contributions would be charged directly to the Consolidated Fund, and pensions would be paid from a proposed judges’ retirement benefits fund if the Bill becomes law.
According to Article 260 of the Constitution, judges of the superior courts are state officers, alongside the president, deputy president, cabinet secretaries, the chief justice and deputy chief justice, MPs, chairpersons and members of constitutional commissions, and holders of independent offices such as the Auditor-General.
