The High Court has dismissed an application by the Salaries and Remuneration Commission (SRC) to have judges car grant case referred to arbitrators.
Justices Chacha Mwita, Patricia Nyaundi and Lawrence Mugambi unanimously agreed that the High Court has powers to entertain the case filed by Peter Gachuiri seeking to compel the government to reinstate car grants to judges.
The car grant was suspended by SRC in 2022.
SRC argued that the case ought to be referred to an impartial team of retired judges appointed by the president as judges would not rule fairly in a case touching on their welfare.
However, the three-judge-bench gave direction where the team would draw its powers to hear and determine a court case.
The judges said it would be absurd to send an active court case to the President, who is the head of the Executive, to appoint a panel of judges to deal with a function of the Judiciary.
They declared that the move would be a breach of the separation of powers and an extra-judicial manoeuvre.
"Aware of the apprehension by SRC and having assessed that concern in light of the oath of office taken by individual judges on this bench and in the country, to administer justice without fear or favour; our ability to carry out that oath to do justice without fear or favour, we hold the view, that we have the ability to disabuse our minds of any irrelevant personal beliefs and do justice as required of us by the Constitution for the benefit of all parties before us," the bench headed by Justice Mwita ruled.
The dispute dates back to 2011 when the Head of Public Service issued a circular allowing judges to access car grants of between Sh5 million and Sh10 million.
But SRC determined that the allowance was illegal and in 2021 wrote to the Head of Public Service who subsequently communicated to Chief Registrar of the Judiciary that SRC had terminated the benefit from July 2022.
Gachuiri argued that the decision by SRC to withdraw car grant allowances for judges is illegal and unconstitutional since it affects their work in instances where the official vehicles break down.
SRC in its response accused judges of being selfish by demanding a car grant of up to Sh10 million since they are already provided with official chauffeured transport catered for by taxpayers.
"The demand is an express and clear act of constitutional subversion. It adversely impacts the affordability and fiscal sustainability of the public wage bill and would result in inequality and disparity in benefits provided to state officers," said SRC Chief Executive Officer Anne Gitau.
SRC argued that judges are demanding too much when they are already enjoying a comfortable lifestyle by being entitled to official transport which is chauffeur-driven as part of their benefit package.
The commission argued that car grants would amount to double compensation from taxpayers' money.
Judges through the Kenya Judges Welfare Association have however supported the petition claiming that the car grant is a necessary benefit to help them in their duties and personal use.
The association's president, Justice Kossy Bor, in her affidavit, swore that it is a facility judges have benefited from since 2008 and SRC's decision to scrap it amounts to discrimination given that other state officers are enjoying the same.
"It is discriminatory against judges given that SRC has recognized existing car grants for members of the legislature, executive, independent offices and commission while purporting to cancel benefits due to judges," said Bor.
