The Salaries and Remuneration Commission (SRC) has lost its bid to block judges from receiving Sh10 million car grant each, dealing a setback to the commission’s efforts to rein in the public wage bill.
The Court of Appeal ruled the benefit is constitutionally protected and cannot be withdrawn, exposing the exchequer to a sustained and recurring financial obligation tied to judicial service.
In a consolidated appeal, the five-judge bench upheld earlier High Court findings that the car allowance—pegged at up to Sh10 million and payable periodically—remains a protected benefit attached to the office of a judge and cannot be removed to their disadvantage.
Currently there are 206 judges with the number set to rise to 216 as the Judicial Service Commission is in the process of recruiting ten more judges for the Environment and Land Court, which presently has 49. The High Court has 91 judges, Employment and Labour Relations Court (17), Court of Appeal (42), and the Supreme Court (seven).
The benefit entitles each judge to a taxable car grant of up to Sh10 million, paid in four years to purchase a personal vehicle. Together, this translates into a significant recurring cost to the exchequer, given the size of the judiciary and the periodic nature of the payout.
At the heart of the dispute was a 2021 letter by SRC directing the withdrawal of the benefit, arguing that only the commission has the constitutional mandate to set and review remuneration and benefits of state officers.
SRC maintained that the allowance had been irregularly introduced through executive circulars issued by the Head of Public Service starting on July 7, 2011, and later reviewed on June 2, 2015 and June 4, 2018.
The commission said this undermined fiscal discipline by inflating the public wage bill, creating inequity among state officers, and bypassing its constitutional mandate to set and review benefits.
Termination of the allowance
But the court rejected that position, finding that the benefit predates the 2010 Constitution and forms part of judges’ protected terms of service. The bench held that the transition to the new constitutional order did not extinguish accrued benefits.
“The issue before the court was whether termination of the allowance violated the Constitution,” the bench noted, adding that the dispute squarely required constitutional interpretation.
The case was triggered by a 2023 public interest petition filed by advocate Peter Mwangi Gachuiri, who argued that the SRC’s directive violated Article 160(4) of the Constitution, which bars reduction of judges’ remuneration and benefits to their disadvantage.
Evidence before the court showed that judges historically enjoyed a duty-free car grant under the repealed Constitution. This was later converted into a taxable car allowance through government circulars in 2011 and subsequently enhanced.
SRC argued that those circulars were unconstitutional because they bypassed its mandate. It further claimed the benefit created inequity, strained the public wage bill, and amounted to double compensation since judges also access official transport and car loan schemes.
However, the court found that the allowance was not a new or irregular benefit but a continuation of an existing entitlement tied to the office of a judge.
“The benefit existed prior to the Constitution 2010 and continued thereafter,” the court observed, rejecting the argument that it could be unilaterally withdrawn.
Crucially, the bench emphasised that judicial independence would be threatened if such benefits were altered arbitrarily. It agreed with the High Court’s three-judge bench that removing the allowance would violate constitutional safeguards protecting judges from adverse changes to their terms.
Doing so, they said, would erode judicial independence by exposing judges to financial vulnerability controlled by another state organ.
Constitutionality of SRC’s action
The ruling also dismissed SRC’s attempt to frame the dispute as an employment matter that should have been heard by the Employment and Labour Relations Court. Instead, the judges affirmed that the case raised fundamental constitutional questions.
“The petition challenged the constitutionality of SRC’s action,” the court said, adding that such issues fall within the High Court’s jurisdiction.
“Any suggestion that judges could not hear the matter would cause an injustice,” the bench held, noting that courts have a duty to interpret the Constitution even where judges are affected.
The appellate court further dismissed proposals to refer the dispute to mediation or arbitration, stating that constitutional interpretation cannot be outsourced to non-judicial bodies.
It also clarified the limits of SRC’s authority, signalling that while the commission sets pay, it cannot strip judges of accrued benefits in a manner that undermines judicial independence.
