High Court reinstates taxable vehicle allowances for judges, rejects SRC decision

By , K24 Digital
On Fri, 24 May, 2024 12:58 | 3 mins read
Image used for illustration. PHOTO/Pexels
Image used for illustration. PHOTO/Pexels

The High Court has declared the decision by the Salaries and Remuneration Commission (SRC) that scrapped the Ksh10 million taxable car allowances for judges illegal and unconstitutional.

A three-bench comprising of Justices Chacha Mwita, Lawrence Mugambi, and Patricia Nyaundi reinstated the taxable car allowances for all judges which they have enjoyed since 2011 but were scrapped in 2021 by the SRC, saying the tax allowance benefit for judges is protected under the constitution and can not be taken away or varied.

"A declaration is hereby issued that the taxable allowance for the purchase of vehicles for judges existed before July 2021 and is a benefit payable to judges under Article 160 of the constitution and can not be varied or set aside in disadvantage of judges," the bench has held.

The judges have also found that the SRC letter dated July 12, 2021, revoking the car benefit to all High Court, Court of Appeal and Supreme Court Judges contravenes Article 160 of the constitution is a threat to the independence of the Judiciary, and is therefore unconstitutional, null, and void.

"An order of certiorari is hereby issued quashing the SRC letter dated July 12, 2021, to the extent that it purported to revoke the taxable car allowance for judges," Mwita, Mugambi, and Nyaundi stated.

Further, judges have ordered PS Treasury to forthwith process pay and continue to pay the Ksh10 million taxable car allowance benefit to judges.

"An order is hereby issued compelling the Principal Secretary National Treasury to forthwith process pay and continue to pay the taxable car allowance to judges as and when they are due," the bench has directed.

The judges dismissed arguments by the Attorney General that the benefit ceased to exist and didn't transition into the new constitution.

In their decision, the bench held that under the repealed constitution, judges were allowed to buy duty-free vehicles.

The point of divergence was whether the benefit transitioned to the new constitution which the three-judge bench said it did.

"We find the taxable car allowance is a benefit to judges. It's enjoyed by holding the said office," the bench stated.

Additionally, the judges have ruled that the constitutional and Human Rights court had jurisdiction to determine the case on grounds issues raised were constitutional in nature and not employer-employee issues as suggested by the Attorney General.

The decision by the court comes after activist Peter Mwangi Gachuiri moved to court challenging the decision by the government's decline to allow judges a car grant of up to Ksh10 million.

In his petition, Gachuiri had urged the court to reinstate taxable car allowances for High Court, Court of Appeal and Supreme Court judges, which they have enjoyed since 2011 after the SRC ordered it scrapped.

On the other hand, the SRC opposed the move arguing that judges have official chauffeured, round-the-clock transport, fully serviced by the State and that giving them car grants amounts to double remuneration.

Under the current terms, SRC stated it will cost taxpayers Ksh 9.8 billion every four years to fund car allowances for judges, which according to the Commission is unaffordable and fiscally unsustainable.

SRC through Its CEO Anne Gitau informed judges are already entitled to reinstate car grants to provide official chauffeured judges which was suspended in July transport at the cost of taxpayers in 2022.

According to Gitau, the grant is unfair to other State officers who are content with what they have been accorded.

She added that Judicial officers' 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 money inequality and disparity in benefits provided to State officers," Gitau had stated in her affidavit.

Gitau further stated that "judges are demanding too much when they are already enjoying comfortable lifestyle by being entitled to official transport which is chauffeur drove as part of their benefits package, and cars to enable them to travel to their the car grant would amount to double duty stations and discharge their ble compensation from taxpayers judicial functions."

SRC had pointed out that the entire judiciary is conflicted in the matter, arguing in the event of a decision that benefits the judges, taxpayers will have no recourse and this would be seen as an abuse of judicial authority which will affect public confidence in the judiciary.

On his side, the petitioner claims that the SRC's decision to withdraw car grant allowances to judges is illegal and unconstitutional since it is a benefit the allowance judicial officers have been enjoying at an interval of four years until July 2022 when it was scrapped.

The dispute sprang up when the former Head of Public Service subsequently revised the rates from Ksh2 million in 2015 and 2018, the effect of which reviewed the allowance upwards to Ksh5 million and Ksh10 million respectively.

Gachuiri argues that the Head of Public Service had capped the car grant for judges at Ksh10 million applicable every four years in the tenure of a judge, up until SRC wrote a circular calling for its scrapping.

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