The Salaries and Remuneration Commission has said that it will appeal a decision by the High Court reinstating a Sh10 million taxable car allowance awarded to judges.
SRC chairperson Lyn Mengich, in a press statement on Friday May 24, 2024, said that the ruling issued by the court was a conflict of interest matter.
High Court judges Chacha Mwita, Patricia Nyaundi and Lawrence Mugambi had on Friday May 24, 2024 ruled for the return of the allowance, quashing an earlier advisory issued by SRC scrapping the payment.
The judges declared a letter issued by SRC on July 12, 2021 revoking the benefit for judges unconstitutional null and void.
But Mengich in her statement said that the ruling had the potential of resulting into a serious conflict of interest and could eventually costing the taxpayer billions of shillings annually.
She also added that the introduction of the allowance was done unlawfully since it did not go through some of the constitutional provisions such as public participation.
“As a commission we are concerned by the ruling because this is an exemption that has a direct personal benefit on the judge that has the potential of affecting their judgements and decisions.
“The allowance also has the potential of costing the taxpayers Sh2.5 billion every year based on the number of judges. It also did not go through the constitutional provision of public participation.
“As a commission we have the right of upholding the Constitution and will therefore be appealing the decision,” Mengich said.
Under the old 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.
And in its ruling, the High Court argued that the advisory issued by SRC scrapping the fund interfered with the independence of the Judiciary, ordering the National Treasury to process and continue to pay the benefit to judges.
“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,” the judges ruled.
SRC had in February this year pleaded for the case challenging the decision to scrap car allowance for judges be taken for mediation.
Through lawyer Peter Wanyama, the commission had argued before court 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,” Wanyama argued then.
Lawyer Issa Mansour, appearing for the Judicial Service Commission (JSC), however asked the court to dismiss the application by SRC and let the matter be heard and determined.
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