The Judiciary and the Salaries and Remuneration Commission (SRC) are embroiled in a court battle over car grants for judges that will cost the taxpayers about Sh9.8 billion every four years.
The Judicial Service Commission wants the court to reinstate taxable car allowances for High Court, Court of Appeal and Supreme Court judges, which they have enjoyed since 2011 after the SRC ordered it scrapped.
On the other hand, the SRC argues that judges have official chauffeured, round-the-clock transport, fully serviced by the State and that giving them car grants amounts to double remuneration.
Under the current terms, it will cost taxpayers Sh9.8 billion every four years to fund car allowances for judges, which according to the Salaries Commission is unaffordable and fiscally unsustainable.
The matter that pits the two constitutional commissions is coming up for mention tomorrow (Tuesday) morning before Justice Lawrence Mugambi, where the Judge is expected to give directions.
As the hearing of the case begins, it presents a huge impartiality test for judges who will have to decide on a matter that directly concerns their personal welfare.
SRC has already pointed out that the entire judiciary is conflicted in the matter, arguing in the event of a decision that benefits the judges, taxpayers will have no recourse and this would be seen as abuse of judicial authority which will affect public confidence in the judiciary.
According to court documents seen by the Nation , the SRC has been sued by a petitioner by the name Peter Mwangi Gachuiri, alongside the Attorney General while the JSC and Kenya Judges Welfare Association have enjoined in the suit as interested parties.
Both the Judicial Service Commission and the Kenya Judges Welfare Association have already filed their submissions in court in support of the case.
At the center of the dispute is Sh10 million each High Court judge has been enjoying as a taxable car allowance, to buy a car of his choice, which is replaced every four years.
In 2021, SRC wrote to the Head of Public Service asking him to revoke all the circulars on Judiciary car grants saying the applicable remuneration and benefits for State Officers are determined by the Commission in accordance with Article 230(4) of the Constitution.
The petitioner claims that the car grant is a facility that judges have historically benefitted from at intervals of 4 years by virtue of holding the office of judge under the Constitution and serving judges both under the old and the new Constitution have a legitimate expectation to that benefit.
He argues that by scrapping the taxable car allowance on the ground that it was not set and reviewed by the commission, SRC directly contravened Article 160 (4) of the Constitution which prohibits the variation of the remuneration and benefits to their disadvantage of judges.
“The benefit of a car grant is helpful to judges at times when their official vehicles break down or the cars are either not serviced or replaced in a timely manner. In those circumstances, judges have resorted to using their private cars to enable them to travel to their duty stations and discharge their judicial functions” argues Mr Gachuiri in his pleadings to the court.
Mr Gachuiri claims SRC's action to vary the remuneration of a judge to their disadvantage amounts to interfering with the independence of the Judiciary.
The Judges Welfare Association through its president Ms Kossy Bor in its submission says in scrapping the car grant, SRC had failed to ensure Judiciary attracts and retains competent personnel.
“As part of their benefits upon their appointment, judges are entitled to a number of benefits including a car grant for the purchase of a motor vehicle for personal use,” Ms. Bor says in the replying affidavit.
In its defense, the Salaries Commission says the Head of Public Service did not have the constitutional mandate or legal authority to confer a benefit or vary remuneration of any state officer.
SRC says it is the only constitutional body mandated to set and regularly review the remuneration and benefits of judges and all state officers hence the taxable car allowance that was introduced 20 days before the operalisation of SRC and subsequent reviews in 2015 and 2018 which were done without approval of the commission were an illegality and subversion of the Constitution.
The commission rejects the assertion that scrapping the car grant is interfering with judiciary independence arguing the law cannot be used to protect an illegality and that it was wrong in the first place to have the double car benefit.
“SRC’s position is that the taxable car allowance having been conferred to Judges, who are State officers, contrary to the provisions of Article 230 of the Constitution is not subject to the protection conferred under Article 160 of the Constitution,” the Commission says in replying affidavits.
Through its Chief Executive Officer Ms Anne Gitau, SRC says they have set and regularly reviewed the remuneration and benefits for Judges and Judicial officers and specifically set a transport benefit for judges in which they are provided with official chauffeured transport.
SRC also wants the suit thrown out on the basis of conflict of interest because the case contravenes Article 75 of the Constitution which requires state officers, including judges to avoid conflict between personal interests and public duties.
“The matter before the court is of interest to every judge as a decision in favor of the petitioner would directly benefit all the judges. This puts the judges in a position of direct conflict in a matter before them” says Ms Gitau.
She further says in SRC’s affidavit that the Chief Justice who in addition to chairing the Judicial Service Commission, heads the judiciary and the Supreme Court has already pronounced herself on the matter, hence raising concerns on the impartiality of judges in determining the matter.
SRC also faulted the JSC for failing to disclose to the Commission that judges were already receiving the taxable car allowance during a series of consultative meetings between the two commissions.
The Head of Public Service subsequently revised the rate in 2015 and 2018, the effect of which reviewed the allowance upwards to Sh5 million and Sh10 million respectively.
