By Peter Ochieng
Judges have every reason to smile, following a positive outcome from the High Court over their fight for Sh10 million car allowance.
Justices Chacha Mwita, Patricia Nyaundi and Lawrence Mugambi on Friday ruled that judges are entitled to a Sh10 million taxable car allowance. The allowance was scrapped by the Salaries and Remuneration Commission (SRC), in 2021.
They termed SRC move as null and void. “A declaration on tax car allowance for private use for judges has been in existence and it’s a benefit to judges and can’t be varied,” they stated.
They noted that the move interferes with the independence of the Judiciary, ordering the National Treasury to process and continue to pay the benefit to judges.
However, SRC through lawyer Peter Wanyama argued that judges cannot hear and determine a matter that is of their interest.
“Can a judge sit on a matter where they have peculiar interests? The decree will be to the judges, not to the petitioner,” argued the lawyer, then. Two months ago, the High Court dismissed an application by SRC to have the matter referred to arbitrators.
Justices Mwita, Nyaundi and 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.
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.
The judges however 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, as enshrined in the 2010 constitution.
“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.
In 2011, then Head of Public Service Francis Muthaura issued a circular allowing judges to access car grants of between Sh5 million and Sh10 million.
However, in 2021 SRC wrote to then Head of Public Service, Joseph Kinyua who subsequently communicated to Chief Registrar of the Judiciary by then, (Anne Amadi) that the Commission had terminated the benefit from July 2022.