The appellate bench has ruled that judges are entitled to a taxable car allowance, rejecting the appeal by the Salaries and Remuneration Commission (SRC) and confirming High Court orders that protected the benefit under the Constitution.
The judgment was delivered on March 25, 2026, by a five-judge panel consisting of George Odunga, P Kiage, W Karanja, Weldon Korir, and K M’inoti.
The dispute dates back to a High Court petition filed by Peter Mwangi Gachuiri, supported by the Kenya Judges and Magistrates Association (KJWA) and the Judicial Service Commission (JSC).
The petition challenged SRC’s July 12, 2021, decision to revoke a long-standing car allowance, originally a duty-free grant for judges before the 2010 Constitution.
In May 2024, the High Court declared the allowance a constitutionally protected benefit under Article 160(4), quashed SRC’s revocation, and directed the National Treasury’s Principal Secretary to process payments to eligible judges.
SRC subsequently filed appeals, arguing that all judges had a direct financial interest and should have recused themselves.
Prior to addressing the merits, SRC sought the recusal of the High Court bench on December 14, 2023, claiming that judges appointed after 2021 could personally benefit from the ruling.
Represented by the Attorney General, SRC further suggested mediation by retired Commonwealth judges or arbitrators from the Chartered Institute of Arbitrators, invoking Article 159’s provisions on alternative dispute resolution.
“Judges in the country have a direct pecuniary interest in the outcome of the petition and should not, therefore, sit on the petition,” SRC maintained.
Gachuiri countered that the matter was public interest litigation defending constitutional guarantees under Articles 258(1) and 160(4), and that the High Court had jurisdiction under Article 165(3).
KJWA and JSC argued that recusal would paralyse justice since “no other Judge would hear the petition.”
The High Court dismissed the recusal application on February 23, 2024, holding: “The court will not recuse itself where it will create an unconstitutional moment by refusing to hear a litigant’s case because the opposite party apprehends bias.”
On appeal, SRC again claimed bias, citing Bangalore Principles and precedents like Jasbir Singh Rai & 3 others v Tarcholan Singh Rai & 4 others.
The commission argued that post-2021 appointee judges had a direct financial interest, and that a reasonable observer could suspect partiality.
The appellate court rejected these claims, emphasizing that judges’ constitutional oath and duty ensured impartiality.
Referring to the objective test from President of the Republic of South Africa & others v South African Rugby Football Union, the bench ruled that a fair-minded observer would not question the judges’ neutrality.
“Judges are not autocrats but are obligated to be faithful to the law and to apply it impartially,” the court cited from Rawal v Judicial Service Commission.
On the merits, the court affirmed that the pre-2010 duty-free car grant was a benefit that transitioned into a taxable allowance via Head of Public Service circulars on July 7, 2011; June 2, 2015; and June 4, 2018, under Sixth Schedule sections 6 and 7.
Enhancements of the car grants to Sh10 million were lawful, and SRC’s silence effectively approved the payments.
Revoking the allowance, the court said, violated Article 160(4): “Where a benefit has already accrued and is thus ringfenced by Article 160(4), that benefit is beyond the reach of the SRC.”
SRC’s arguments that the grants were unsustainable, amounted to double-dipping, and exceeded its mandate were dismissed.
The court noted that constitutional drafters considered the judiciary’s role and the need to safeguard judicial remuneration to maintain the rule of law.
“The posture taken by the SRC that the decision poses substantial risks to Kenya’s fiscal sustainability and governance integrity rings hollow. The importation of such vague and ambiguous terms to defeat explicit constitutional imperatives cannot be countenanced,” the court said.
It further stressed that the government must pay judges’ salaries and allowances when due. SRC may recommend increases, but it cannot refuse to pay accrued benefits.
The commission’s claim of ignorance of the circulars until 2021 was dismissed, as they were directed to accounting officers, including SRC staff.
The appellate bench concluded: “Having considered the issues raised before us in this appeal, the decision we come to is that the appeal is unmerited. It is dismissed in its entirety.”
