Supreme Court to decide fate of Sh10m judges' car allowance

All eyes are on the Supreme Court today as the Salaries and Remuneration Commission (SRC) seeks to overturn a ruling upholding the controversial Sh10 million taxable car allowance for judges.

Chief Justice Martha Koome and her six colleagues are expected to hear the high-stakes dispute over the allowance, which SRC argues was introduced without its approval, amounts to double compensation and raises questions about its constitutional mandate to determine the remuneration and benefits of State officers.

At the centre of the dispute is a benefit that increased fivefold in seven years, from Sh2 million in 2011 to Sh10 million in 2018, following circulars issued by the Head of Public Service.

SRC maintains that the increases were made without its involvement, despite the 2010 Constitution assigning it the responsibility of setting and regularly reviewing the remuneration and benefits of State officers.

The commission has warned that the allowance could cost taxpayers Sh9.8 billion over four years, arguing that its continued payment undermines efforts to control public expenditure and ensure fairness across the public service.

Judges, however, maintain that the allowance is not a new benefit introduced under the current constitutional order. They argue that it is a continuation of the duty-free car grant they enjoyed under the former Constitution and that its withdrawal would violate constitutional safeguards protecting their remuneration and independence.

The dispute has therefore evolved into a constitutional contest between the authority of the remuneration regulator and the protections afforded to the Judiciary.

How the allowance grew to Sh10 million

The controversy dates back to July 7, 2011, when the Head of Public Service issued a circular granting a taxable car allowance of up to Sh2 million to High Court judges, permanent secretaries and accounting officers, the Clerk to the National Assembly and provincial commissioners.

The arrangement was initially intended to replace the duty-free vehicle purchase benefit that certain constitutional officeholders had enjoyed under the former constitutional framework.

The allowance was subsequently increased to a maximum of Sh5 million in June 2015 and doubled to Sh10 million in June 2018.

In its court papers, SRC argued that the increases were made unilaterally, without consultation with the commission.

It cited Article 230(4)(a) of the Constitution, which gives it the mandate to set and regularly review the remuneration and benefits of State officers.

The commission argued that payments introduced outside this framework were unconstitutional and risked creating disparities among public officers.

It further maintained that the arrangement had implications beyond the Judiciary because other senior public officials were also covered by the circulars.

SRC consequently sought the revocation of the circulars, arguing that the allowance had been introduced and revised without regard to its constitutional mandate.

SRC warns of Sh9.8bn cost

One of the commission’s central arguments is the projected financial burden of maintaining the allowance.

In a replying affidavit, SRC chief executive officer Anne Gitau warned that the additional expenditure would affect the sustainability of the public wage bill.

“The additional cost to the taxpayer is estimated at Sh9.8 Billion for four years with further additional costs arising from the ripple effect to other State Officers Accounting Officers/CEOs in the Public Service,” Gitau stated.

The commission also argued that the allowance was inequitable because judges already had access to official transport arrangements and other transport-related benefits.

It questioned why an additional taxable car allowance should be paid when government vehicles and other transport provisions were available.

“Why should judges get official transport and then be given a taxable car allowance of Kshs 10 million? This amounts to double compensation besides being inequitable,” Gitau stated.

SRC’s position is that public funds should be spent through a transparent remuneration framework, with benefits assessed against affordability, fiscal sustainability and fairness across the public service.

The Sh9.8 billion figure, however, is the commission’s estimate of the potential cost over four years, rather than an independently established final expenditure.

Judges challenge withdrawal of benefit

The dispute intensified in July 2021, when SRC wrote to the Head of Public Service seeking the revocation of the circulars providing for the taxable car allowance.

The commission maintained that the 2010 Constitution had fundamentally changed the system for determining public officers’ remuneration by giving SRC a specific constitutional mandate.

Peter Mwangi Gachuiri, an advocate who filed a public-interest petition, challenged the move to withdraw the benefit. The Kenya Judges Welfare Association and the Judicial Service Commission supported the challenge.

They argued that the allowance existed before the promulgation of the 2010 Constitution and could not subsequently be withdrawn to the disadvantage of judges.

Article 160(4) of the Constitution protects judicial remuneration and benefits from being varied to the disadvantage of judges.

The petitioners argued that the allowance formed part of the terms and conditions attached to judicial office and that its withdrawal threatened judicial independence.

The Judicial Service Commission also maintained that its constitutional role in setting the terms and conditions of service for judges had to be distinguished from SRC’s mandate over the remuneration of State officers.

The competing arguments raised a fundamental constitutional question: can a benefit that existed before the 2010 Constitution be withdrawn under the new constitutional framework, or is it protected as part of the terms of judicial service?

High Court and Court of Appeal rulings

On May 24, 2024, a three-judge High Court bench comprising Justices Chacha Mwita, Patricia Nyaundi and Lawrence Mugambi ruled in favour of Gachuiri.

The court declared that the taxable car allowance for the purchase of private vehicles constituted a benefit payable to judges under Article 160(4) and could not be varied or withdrawn to their disadvantage.

The judges also ordered the National Treasury to process and continue paying the allowance as it fell due.

The ruling dealt a setback to SRC’s attempt to terminate the benefit, placing constitutional protection of judicial remuneration at the centre of the dispute.

Aggrieved by the decision, SRC appealed, arguing that the High Court had interfered with its constitutional mandate and that the order compelling continued payment encroached on public financial management and remuneration-setting responsibilities.

The Court of Appeal dismissed the commission’s challenge on March 25, 2026, upholding the ruling that protected the allowance.

The five-judge appellate bench, comprising Justices George Odunga, Patrick Kiage, Wanjiru Karanja, Weldon Korir and Kathurima M’Inoti, affirmed the judges’ entitlement to the benefit.

SRC subsequently filed an appeal at the Supreme Court, placing two constitutional principles at the heart of the dispute.

The first is SRC’s authority to regulate the remuneration and benefits of State officers to promote fairness and ensure that public expenditure remains affordable.

The second is the constitutional protection of judicial remuneration, intended to safeguard judges from financial pressure that could compromise their independence.

The commission’s challenge also raises broader questions about how public benefits are introduced, reviewed and sustained, particularly where the Constitution assigns different responsibilities to independent institutions.

The Supreme Court is expected to hear the parties’ arguments and determine whether the lower courts’ decisions protecting the allowance should stand or whether SRC’s challenge should succeed.

Its determination will have implications beyond the purchase of private vehicles, touching on the boundaries between constitutional commissions, the Executive and the Judiciary in the management of public remuneration.