Win for judges as court quashes SRC's move to scrap car allowance

Salaries and Remuneration Commission Chairperson Lyn Mengich during a previous event at Norfolk Fairmount Hotel on Aug 9, 2023. [Edward Kiplimo, Standard]

Judges won a protracted legal battle against the Salaries and Remuneration Commission (SRC) over a Sh10 million car allowance.

High Court Judges Chacha Mwita, Patricia Nyaundi and Lawrence Mugambi unanimously agreed that the commission had no powers to either alter or order for the removal of the allowance.

The bench headed by Justice Mwita found that by SRC scrapping the allowance, it was interfering with the independence of the Judiciary.

The allowance was initially provided for in the old Constitution. However, after the promulgation of the 2010 Constitution, judges continued enjoying the same.

The three-judge-bench noted that it was unclear how and why SRC scrapped the car allowance even after new judges were appointed and granted the benefit.

They stated that contrary to SRC’s claims, the fund is ring-fenced in the Constitution and therefore cannot be altered or scrapped.

“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,” they 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 the Chief Registrar of the Judiciary that SRC had terminated the benefit from July 2022.

Gachuiri argued that the decision by SRC to withdraw car allowance for judges is illegal and unconstitutional since it affects their work.

SRC, in its response, accused judges of being selfish by demanding a car grant of up to Sh10 million yet they are already provided with official chauffeured transport.

“The demand is an express and clear act of constitutional subversion. It adversely impacts the affordability and fiscal sustainability of the public wage bill," said SRC Chief Executive Officer Anne Gitau.

This, the CEO said would result in inequality and disparity in benefits provided to State officers.

SRC argued that judges are demanding too much when they are already entitled to official transport.

The commission argued that car grants would amount to double compensation from taxpayers' money.

Judges, through the Kenya Judges Welfare Association, 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.

Thus the decision by SRC to scrap it amounts to discrimination given that other State officers are enjoying the same

The three judges also declined to suspend their judgment in a bid to allow SRC to move to the Court of Appeal.